Courts can interpret Places of Worship Act 1991 in various ways; here are some
The Act appears open to various interpretations; it doen't bar the ascertaining of religious character of Gyanvapi mosque, said SC; it doesn't apply in Krishna Janmabhoomi case since the petitioner is a 'friend of deity, said Mathura court
Following directions from the Supreme Court last Friday on the Gyanvapi issue, the district court in Varanasi on Monday heard both the sides. It has reserved its order on the maintainability of the suit and will decide on the future course of action on Tuesday.
While the Muslim side is saying that under the Places of Worship (Special Provisions) Act, 1991, the status of the Gyanvapi mosque cannot be changed, the Hindu side is contesting this claim, saying the 1991 Act is not applicable to the Gyanvapi case.
The Varanasi local court’s order of May 17 on conducting a videography survey of the Gyanvapi Masjid complex has thus put the spotlight back on the 1991 Act.
The Act that has become a bone of contention
The Places of Worship (Special Provisions) Act, 1991, passed by Parliament on September 18, 1991, is “An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto.”
In this regard, two important developments happened over the past week. One, the Supreme Court on Friday observed that ascertaining the religious character of a place of worship is not barred under the Places of Worship Act. And two, the Mathura district court on Thursday said the Act doesn’t apply in the Krishna Janmabhoomi case.
The Supreme Court’s observation
In the Supreme Court, a bench of Justices DY Chandrachud, Surya Kant, and PS Narasimha made the observation during an hour-long hearing of the Gyanvapi mosque dispute and said that it has dealt with provisions of the Places of Worship Act in its 2019 Ayodhya verdict and that Section 3 does not expressly bar ascertaining of the religious character of the place of worship.
Section 3 of the Act says: “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.”
The bench — while clarifying that it is not its opinion but that it is in dialogue with the parties — said: “We have dealt with the provisions in our Ayodhya verdict. The ascertainment of the religious character of the place of worship is not expressly barred.”
Justice Chandrachud, who made the observation, was also part of the five-judge bench that delivered its verdict on the Ayodhya dispute in 2019.
What was the judge saying?
The judge said, “Suppose there is an Agiyari (a Parsi fire temple) and there is a Cross in another segment of the Agiyari in the same complex. Does the presence of an Agiyari make the Cross an Agiyari? Does the presence of the Cross make the Agiyari a place of Christian worship? Therefore, if you have this hybrid character, forget this arena of contestation. This hybrid character is not unknown in India.”
Justice Chandrachud further said: “What the Act of 1991 therefore recognises? The presence of the Cross will not make an article of Christian faith into an article of the Zoroastrian faith. Nor does an article of Zoroastrian faith make it a structure of Christian faith. Therefore, at some level the survey…whether the trial judge went far beyond his remit and whether it was appropriate… we will not hazard ourselves by rendering an opinion on the order at this stage. We are also concerned about these issues but the ascertainment of the religious character of a place as a procedural instrument may not necessarily fall foul of the provisions of Sections 3 and 4 of the Act of 1991”.
Senior advocate Huzefa Ahmadi, appearing for the Gyanvapi mosque committee, had said, “This will cause grave public mischief, which the Act of 1991 tried to avoid. A narrative is being built. We cannot leave these issues festering. The Commission’s reports are being leaked selectively and disrupting communal harmony, which the 1991 Act wanted to avoid. Don’t look at this from the point of one suit alone but look at its ramification across the country.”
In layman’s language, what the bench essentially said is — under the 1991 Act, you cannot change a mosque or a church into a Hindu temple, or vice-versa; however, there’s nothing to stop one from trying to find out whether a building is a mosque or a church or a temple.
Again in layman’s language, what advocate Ahmadi said is: “It will never stop with ‘just finding out’.”
Krishna Janmabhoomi case: ‘Friend of deity’
In Mathura, the district judge who allowed the civil revision plea of Shri Krishna Janmabhoomi Trust and other private parties observed in his order that the provisions of the Places of Worship Act were not applicable in the case because of Section 4(3) (b) of the 1991 Act.
The court also said a worshipper, as the ‘next friend of a deity’, can file a suit for restoration of the religious rights of the deity (a deity is a legal entity under law).
The petitioners – Lucknow resident and advocate Ranjana Agnihotri as “next friend of Bhagwan Sri Krishna Virajman”, along with six others — had argued that the agreement reached between Shri Krishna Janmasathan Seva Sansthan and Shahi Idgah Trust in 1968 was fraudulent and it resulted in a compromise decree in 1974.
Also read: Explained: The Krishna Janmabhoomi case and the controversy behind it
The Shri Krishna Janmasathan Seva Sansthan and the Shahi Idgah mosque management committee had signed an agreement under which the ownership of the land remained with the temple trust, but the Trust Masjid Idgah had management rights to run the temple.
What does Section 4(3)(b) of the 1991 Act say?
Mathura district court judge Rajeev Bharti reasoned that “as the decree was drawn before the commencement of the Act of 1991 and since the same is the subject matter of challenge in the suit moved by the petitioner, and, therefore, by virtue of Section 4 (3) (b) of 1991 Act, the Act shall not be applicable on this dispute.”
Section 4(3) (b) of the 1991 Act says: “Nothing contained in sub-section (1) and sub-section (2) shall apply to ‘any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act’.”
Section 4(3) sub-section 1 says: “It is hereby declared that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day’).
Section 4(3) sub-section 2 says: “If, 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 the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same 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…”
The judge had passed the order on Thursday but it was uploaded only on Saturday.
What does the order mean?
Per legal observers, the order effectively means that the 1991 Act does not come in the way of cases that sought a declaration on the period prior to 1991 and for enforcement of claim recognised before the Act came into being, said a report in The Hindu. That is, for lawsuits pending from before 1991, as in the Mathura case, the 1991 Act doesn’t apply.
While Hari Shankar Jain, the advocate of the petitioners in both the Mathura and Varanasi cases, welcomed the order, advocate Tanveer Ahmed, who argued for the Shahi Idgah Trust, said the Supreme Court should make its stand clear on the Places of Worship Act.
Also read: Explained: What the Places of Worship Act, 1991 says, and its brief history