The Places of Worship Act is a classic example of how a modern state is attempting to propagate a false idea of secularism by suppressing Hindu identity, marginalising Hindu religious aspirations, trivialising Hindu victimisation, and, above all, depriving Hindus of the most fundamental democratic right—judicial review. – Vivek Gumaste
The curt decision by the Supreme Court bench, led by CJI Sanjiv Khanna, to bar lower courts from accepting new petitions or ordering new surveys until it concludes its hearing on the Places of Worship (Special Provisions) Act, 1991 brings this contentious issue back onto the centre stage and compels us to debate on its validity.
Does this Act passed in 1991 by the Congress-led Narasimha Rao government, ostensibly to preserve social harmony, conform to the fundamental principles of justice and equality? Is the claim that it upholds the concept of secularism a plausible argument? Or is it a law that inadvertently legalises the wrongs of the past under the guise of false secularism? In short, is it a moral law?
A law is a set of rules that are created and enforced by governing entities to regulate behaviour, both public and personal, to ensure the smooth functioning of society. Laws can be passed by any controlling authority—be it a parliament, an autocrat or a king.
Therefore, laws are not sacrosanct per se. Arbitrary laws or wrongful ones can be enacted by dictators attempting to cling to power, avaricious monarchs intent on amassing wealth, and even political parties pandering to their vote banks. For a law to become universally acceptable, it needs to incorporate the concept of morality. Morality, without getting into a complex academic, philosophical, or legal debate on the matter—simply put—is what is right and wrong.
Immanuel Kant, the well-known German philosopher, believed that a moral imperative requires laws “to be chosen as though they should hold as universal laws of nature.” In short, law is related to morality inasmuch as justice is a moral concept, which is meaningless outside the realm of morality. Essentially, justice consists in the creation of an equal system. (Arthur Scheller Jr., Marquette Law Review, 1953)
With this definition and with these interpretations, let us look at the Places of Worship Act.
The Places of Worship (Special Provisions) Act, 1991 was enacted by the Congress-led Narasimha Rao government on 18 September 1991, in the context of the Ayodhya dispute.
The key elements of the Act are as follows:
• Section 3 states: No person shall convert any place of worship of any religious denomination, or any section thereof, into a place of worship of a different section of the same religious denomination or of a different religious denomination, or any section thereof.
• Section 4(1) stipulates the cut-off date: It is hereby declared that the religious character of a place of worship existing on 15 August 1947 shall continue to be the same as it existed on that day.
• Section 4(2) debars any future or pre-existing suits on the matter: “On the commencement of this Act, any suit, appeal, or other proceeding with respect to the conversion of the religious character of any place of worship existing on 15 August 1947, which is pending before any court, tribunal, or other authority, shall abate, and no suit, appeal, or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal, or other authority.”
Morality
To fully comprehend the implications of the Places of Worship Act, we need to be cognizant of India’s contentious history. Over a period spanning more than a thousand years, alien Muslim invaders and Portuguese colonists forcibly destroyed hundreds of Hindu temples and viciously desecrated their idols. Several Muslim rulers erected mosques over Hindu temple sites. Iconoclasm, predominantly directed against Hindu places of worship, was both a state-sanctioned and religiously ordained policy under both Muslim rulers and the Christian Portuguese.
Let us be clear about one thing: These were acts of crass immorality that were undoubtedly wrong. There can be no debate or justification for these vile deeds. The passage of time cannot mitigate their depravity or convert these wrongs into right. By maintaining the status quo, the Places of Worship Act allows these symbols of injustice to persist, granting them a degree of legal respectability and ensuring that wrong will forever prevail over right. This is unacceptable by any standard of universal human morality.
Basic Structure of Constitution
Not only does this law deviate from the universal principles of morality, but it also runs afoul of the modern Indian Constitution. Its biggest flaw is that it violates the basic structure of the Constitution which gives every Indian citizen the right to judicial review for their grievances.
Judicial review is a legal procedure that gives the courts of a country the power to examine the actions of the legislative, executive, and administrative arms to adjudicate whether such actions conform to the written Constitution. Based on the review, courts can validate or nullify governmental actions, if unconstitutional.
Article 32 of the Indian Constitution is a fundamental right that guarantees the right to constitutional remedies; it means every individual has the right to move the Supreme Court for the enforcement of their fundamental rights.
In the famous Kesavananda Bharati judgement (Kesavananda Bharati vs State of Kerala, April 24, 1973), the Supreme Court of India propounded the basic structure doctrine of the Constitution, which stipulates that certain fundamental features of the Constitution, such as democracy, secularism, federalism, and the rule of law, cannot be amended by Parliament. Additionally, the court held that “judicial review is an integral part of the basic structure of the Constitution,” thereby implying that Parliament cannot abrogate this right.
More recently, in the case of Anita Kushwaha v. Pushap Sudan (2016), the Supreme Court was more explicit, indicating that blocking a citizen’s access (mainly Hindus in these cases) to courts violated the equality defined in Article 14. The Supreme Court stated: “A citizen’s inability to access courts or any other adjudicatory mechanism provided for the determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14, both concerning equality before the law and equal protection of the laws.”
Section 4 of the Places of Worship Act bars anyone from filing an appeal before a court, tribunal, or other authority to seek redress—a draconian diktat that, by denying the right to judicial review, violates the basic structure of the Constitution, making it an illegal Act.
Secularism
To claim that this Act will further secularism is a myth. The Act is an oxymoron. In order to ostensibly preserve secularism, the Act indirectly condones actions that strike at the very heart of a secular society. The destruction of a site of worship belonging to another religion, followed by the building of a mosque over it, prompted by hate and hubris, is certainly not secularism; it represents the very epitome of religious xenophobia. This law indirectly condones the state-sanctioned, intolerant, hateful iconoclasm of Muslim rulers of yore.
Social Disharmony
The spectre of communal disharmony has often been invoked as the rationale behind the Places of Worship Act. Former Supreme Court judge Rohinton Nariman recently claimed: “We find today, like the hydra’s heads popping up all over the country, there is suit after suit filed everywhere. … Now, not only concerning mosques but also dargahs. … All this can lead to communal tension and disharmony, contrary to what is envisaged in both our Constitution and the Places of Worship Act.”
After introducing the bill, the then Home Minister S.B. Chavan remarked: “I am sure that the enactment of this Bill will go a long way in helping restore communal amity and goodwill.”
Communal harmony cannot be attained through mollification. It is the product of maturity and good sense. Moreover, communal harmony is a two-way street, not a one-way traffic. This law is based on the assumption that redressing historical wrongs committed by Muslim invaders, even through the legal process, will anger today’s Muslims and lead to violence. However, there is also a flip side to this enforced status quo. Not allowing redress can also fuel Hindu anger and have the same consequences. Traditional Hindu timidity and the tendency to give in to maintain peace cannot be taken for granted or guaranteed.
When Muslims defend these historical atrocities and seek legal help to preserve the status quo, they not only identify themselves with the perpetrator but also with the vile deed itself; in effect knowingly and deliberately accepting responsibility for the crimes of Muslim invaders. Today’s Muslims must disassociate themselves from these past misdeeds.
Lasting harmony cannot be achieved by suppressing the Hindu voice to appease Muslims. Justice must be rendered by the courts wherever it is due, regardless of the passage of time, and it is the duty of all law-abiding citizens to accept that verdict.
United Nations Declaration on the Rights of Indigenous Peoples
Colonialism and invasions resulted in Indigenous people being deprived of their fundamental rights. The reclamation of cultural identity is one of the most important political and social concerns in post-colonial countries and has been the topic of extensive discussion among scholars, leading to the United Nations Declaration on the Rights of Indigenous Peoples.
Article 11 of this charter states: Indigenous peoples have the right to practise and revitalise their cultural traditions and customs. This includes the right to maintain, protect, and develop the past, present, and future manifestations of their cultures, such as archaeological and historical sites. … States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with Indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
Note that the Article specifically refers to restitution for “religious and spiritual property taken without their free, prior, and informed consent or in violation of their laws, traditions, and customs”, making it applicable to Hindu temples.
The Places of Worship Act is a classic example of how a modern state is attempting to propagate a false idea of secularism by suppressing Hindu identity, marginalising Hindu religious aspirations, trivialising Hindu victimisation, and, above all, depriving Hindus of the most fundamental democratic right—judicial review.
The Places of Worship Act is immoral, violates the basic structure of our Constitution in more ways than one, condones religious xenophobia and contravenes the United Nations Declaration on the Rights of Indigenous Peoples. It must be struck down by the biggest gavel of the Supreme Court to preserve the sanctity of our democracy and secularism, and to restore faith in basic morality. – News18, 23 Decemeber 2024
› Vivek Gumaste a US-based academic and political commentator.
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