Places of Worship Act: An Act of Colorable Legislation?

by Prakhar Singh and Aviral Pathak

1.    Prelude To the Topic

India is the cradle of a variety of religions and cultures. Being a multi-religious and multicultural country, it throws a significant challenge in front of its government to preserve peace and harmony while promoting coexistence and tolerance. To serve the said purpose, P.V. Narasimha Rao’s government brought in the “Places of Worship Act, 1991“, which seeks to maintain the “religious character” of holy structures as it was at Independence. It kept the Ayodhya dispute out of its purview to provide scope for a possible negotiated settlement. The objective of the law was to “to prohibit the 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.“

The law fails the test of time, and what was intended to be a tool for enforcing our commitment to secularism becomes a weapon that harms the same.The failure prompts several concerns, including “constitutional or colorable legislation?” and “secularism or pseudo-secularism?” inter alia.

The articles will argue against the constitutionality of the Places of Worship Act. It raises disagreement over the arbitrary exception granted to Ayodhya and analyses the possibility of including Kashi Vishwanath under Section 5 of the Act. Furthermore, it concludes by briefly touching upon the practical and feasible ways forward.

2.             Problem At Hand

“Let no one challenge India’s secularism,” remarked Atal Bihari Vajpayee. To our dismay, the law itself is now challenging the nation’s secularism. A law must align with the Constitution to be a good law. However, the Act, in various instances (as discussed below), significantly departs from the principles laid down by the Constitution. The act violates Articles 14, 15, 21, 25, 26, 29, and 32 and contravenes the principles of secularism and the rule of law. In recent years, the issue of unconstitutionality has gotten a lot of attention. This started when Devkinandan Thakur filed a petition challenging the constitutionality of sections 2, 3, and 4 of the 1991 Act. This was followed by another petition filed in the Supreme Court, which said that some parts of the Act violate articles 14 and 15 of the Constitution of India.

Section 3 of the Act prohibits the conversion of any place of worship. The section contradicts the spirit of Articles 25, 26, and 29. Article 25 guarantees “freedom  of conscience and free profession, practice, and propagation of religion”. The same has been defined by section 3 by barring the conversion of religious places back to their original nature, thus obstructing the rights of Hindus, Jains, Buddhists, and Sikhs to profess, practice, and propagate their religion. Barring the conversion also infringes on the rights of the temple authorities to manage, maintain, and administer the places of worship and pilgrimage granted under Article 26 and the rights of minorities to preserve cultural heritage under Article 29.

Section 4 of the Act provides for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947 by laying a bar on the jurisdiction of courts. The said provision hampers the value of justice in a two-fold manner. First, it has an arbitrary and irrational retrospective cut-off date that tries to legitimise the barbaric acts of the invaders. This engrained arbitrariness violates the test of reasonable classification and intelligible differentia laid down in u/A 14 of the Constitution. Second, section 4 bars filing any suit or initiating any other legal proceeding, and thus the right of judicial remedy granted u/A 32 is taken away.

Apart from specific sections, the holistic essence of the Act hampers equality granted under article 14, violates article 15 by discriminating on the basis of religion, and promotes pseudo-secularism by restricting Hindus, Jains, Buddhists, and Sikhs from restoring the possession of places of worship and pilgrimage but allowing Muslims to claim the same under Section 107, Waqf Act, which results in uneven privileges for different religions. Additionally, not allowing conversion obstructs the right to pray, which has been declared a continuing wrong as per the case ofSir Seth Hukum Chand v. Maharaj Bahadur Singh. The legislation breaches several international treaties that require the repatriation and preservation of indigenous peoples’ property, notably religious and cultural property. The act also infracts upon Article 11 of the UN Declaration of Human Rights by barring the rights of the Hindus from seeking justice and reclaiming their cultural heritage under the places of worship act. Striking it down would not only provide them with immediate relief, but it would allow them to fight for their long-awaited rights.

3.             Section 5: The Bone of Contention

Section 5 of the Act is the section that has been heavily debated as it excludes Ayodhya from the purview of the Act. This act was passed in 1991, and at the time it was thought appropriate to exempt Ayodhaya from its coverage because the case was still pending before the SC. In 2019, the Ayodhya Judgment came in which it was held that Ayodhya was the birthplace of Lord Ram.

From the reasoning given by the SC in the Ayodhya judgment, parallelism can be drawn to Kashi Vishwanath, which finds its mention in the Kashi khanda of the Skanda Purana. The Kashi temple has been a contentious issue since the filing of the lawsuit by the Kashi Vishwanath Mandir Trust in 1991, claiming that the temple was built by Maharaja Vikramaditya more than 2,000 years ago-the same place where the mosque is situated. According to a legend, Mughal ruler Aurangzeb destroyed the temple in 1664, and a mosque was built on a portion of the site where the burned house of worship formerly stood. The trust sought the removal of the Gyanvapi Masjid and control of the entire plot of land. Thus, it is evident that the Kashi Temple satisfies the requirements on the basis of which the Ayodhya Temple was granted special status. Still, the exclusive provision for Ayodhya and its non-elastic framework raises concerns about the uniformity and rationality of the act. If the act isn’t thrown out, it needs to be changed in several ways to keep things uniform and fair while giving a religious place special status under Section 5.

4.             Way forward 

The current legislation requires some revision due to its flaws. To substantiate the claim, the current situation of Kashi Vishwanath can be taken as an example, as the act itself does not provide complete grounds for settlement of the disputes. Therefore, the flaws in the Act demand changes to be made at the earliest. The road bifurcates here, giving us two practical ways forward. First, to make some amendments to undo injustice by ensuring equal opportunity for different religions and the right to approach the court. This is an excellent opportunity for the judges to develop a set of universal standards that, if met, would allow the holy site to be an exception u/s 5 of the Act. To achieve uniformity, the criterion for universal standards should be derived from the Ayodhya issue, in which the SC relied on scriptures as well as other tabloids released at that time. However, rules must be scrupulously adhered to prevent less important locations from being given the designation of exception. Second, an audacious line of action would be to proclaim the act to be invalid and void and to set up a separate tribunal. The establishment of tribunals would ensure speedy trial of cases relating to religious sites; otherwise, the court may be inundated with identical cases, which would choke up the system. Article 323 B needs to be changed to include “religion” in the list of themes to meet the conditions for establishing a religious affairs tribunal.

5.            Conclusion 

Some regulations have far-reaching effects on society as a whole and go well beyond what may be considered reasonable. The Places of Worship Act of 1991 is one such law. The Act has been challenged in court since it was first passed, and the current uptick in judicial activism has led to a rise in the number of petitions and public interest litigation (PIL) challenging the Act. The court’s decision in the Ayodhya issue has resurrected dormant worries about the claims of numerous Hindu organizations about the Gyanvapi mosque in Varanasi and the Shahi Idgah in Mathura, leaving a cliffhanger. Some have questioned, in light of the Ayodhya ruling, whether or not the law is biased against different religious sites due to inconsistent criteria. It highlighted the act’s ridiculousness, lack of justification, and blatant arbitrariness. The Act’s inconsistencies and the ways in which it breaches articles 14, 15, 21, 25, 26, 29, and 32 of the Constitution make it clear that it has to be revised and amended, if not declared unconstitutional. In order to ensure that justice is served by a dependable rule of law, it is essential to review, reform, and revamp not only our laws but also our institutions of power. Government and the law need to take affirmative action to guarantee everyone the same rights and opportunities, regardless of how they express themselves.