New Delhi: The Archaeological Survey of India’s (ASI’s) report suggesting that a Hindu temple existed where the Gyanvapi mosque now stands will be cited as a crucial piece of evidence to establish that the original character of the structure was that of a temple and, hence, the civil suits are not barred under the Places of Worship (POW) Act, 1991, the counsel for the Hindu side has told ThePrint.
Advocate Vishnu Jain, who argued the matter for five women devotees claiming worshipping rights inside the mosque, said the POW Act locks the character of a place of worship as it existed on 15 August 1947. “But the determination of this character is not barred,” he said, adding: “Offering of prayers inside a structure does not define the character of a place of worship.”
According to him, his clients and others — who have in a different set of petitions demanded land rights for the deity of Kashi Vishwanath temple in the area where the mosque stands — have not demanded a change in the character of the structure.
Rather, he explained, the character of the place altered once it was turned into a mosque. Therefore, the suits only seek to restore the original character of the place of worship, as it existed even before 15 August 1947, he added.
With the ASI’s report virtually supporting the Hindu side’s claim, the focus would now shift to the courts, particularly the Supreme Court, where a batch of petitions challenging the maintainability of the civil suits filed in the Kashi-Gyanvapi dispute are pending.
The Muslim side, represented by the Gyanvapi mosque management committee, challenged the Allahabad High Court’s decision to hold these suits maintainable.
According to the mosque management committee, the POW Act, 1991, prevents any party from filing such a suit, which aims to alter the religious character of a place as it stood on 15 August, 1947.
Relying on the 1991 law, the mosque committee has contended that the law prohibits converting, in full or part, a place of worship of any religious denomination into a place of worship of a different religious denomination, or even a different segment of the same religious denomination.
Also Read: What’s the 1937 Din Mohammed suit & why did Muslim side cite it in Gyanvapi-Kashi Vishwanath dispute
What the law says
Enacted under the regime of then Prime Minister P.V. Narasimha Rao, the POW Act, 1991, was introduced at the height of the Ram Mandir movement. Running into eight sections, the two pages-long Act intends to bar any effort or move seeking any conversion of the character of a religious place of worship as it existed on 15 August, 1947. The law also penalises an attempt to convert, and conspire for it.
“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,” it says.
Section 3 of the POW 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.”
Through Section 4, the Act also declared any title suit, appeal or other proceeding pending with respect to conversion of the religious character of any place of worship, existing on 15 August, 1947, shall abate.
However, the law carved out certain exceptions and exempted conversion of those places of worship that were “effected before the commencement (of the 1991 Act) by “acquiescence”.
In its Ram Janmabhoomi judgment, which paved the way for the construction of the Ram Temple in Ayodhya, the Supreme Court hailed the POW Act as a tool to not hold the “present and future captive over historical wrongs and serves the belief that such wrongs should have been buried at the Independence and the nation should have made a fresh start”.
“In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future,” said the constitution bench of the apex court in its unanimous judgment.
A batch of petitions challenging the constitutional validity of the POW Act is currently pending in the Supreme Court. Apart from highlighting how the law violates secular principles of the Constitution, these petitions also claim that not enough time was afforded to the members of Lok Sabha before the Bill was introduced.
Ambiguity in the law
Meanwhile, Allahabad High Court judgments and verbal observations made by the Supreme Court in the Kashi-Gyanvapi title dispute case highlight the loophole in the law and its ambiguity. And, the Hindu side is likely to use this slip in the law to their advantage.
The Allahabad High Court in December held that the bar imposed by the POW Act is not absolute. Its ruling rejected the Gyanvapi mosque management committee’s argument that land title suits were not maintainable in view of the 1991 law.
The HC ruled the POW Act does not define ‘religious character’ and only defines “conversion” and “place of worship”. In such a case, only a competent court may be the only route for such determination, it said.
As for the disputed structure in question, it said, “The religious character of the place is yet to be determined.”
“The Act does not define ‘religious character’, and only ‘conversion’ and ‘place of worship’ have been defined under the Act. What will be the religious character of the disputed place can only be arrived by the competent court after the evidences are led by the parties to the suit…Either the Gyanvapi Compound has a Hindu religious character or a Muslim religious character. It can’t have dual characters at the same time. The religious character has to be ascertained by the Court considering pleadings of the parties, and evidences led in support of pleadings,” the HC stated.
It also declared that the case was exempted under the POW Act. It noted that “where conversion has taken place much before the commencement of the Act, and a party had not approached the court, the acquiescence or silence would not bar the action of such party”.
Even the Supreme Court has on three different occasions made verbal comments on what can be termed as the shortcoming in the 1991 law.
During a hearing in May 2022, when it took up petitions against the POW Act, the bench led by Chief Justice of India D.Y. Chandrachud commented: “Ascertainment of a religious character is not barred by the POW Act.”
Twice, another bench led by CJI Chandrachud made observations on similar lines, indicating a trial may be needed to determine the religious character of a place of worship. Both were given in response to the objections made by the mosque management committee to the suits related to the Kashi-Gyanvapi mosque dispute.
In August 2023, the court refused to stop the ASI survey of Gyanvapi mosque, saying: “So there are two bars. Section 3 is the bar on converting any place of worship of any religious denomination of any section into a place of worship of a different section or religious denomination. Section 4 (1) says it is hereby declared that the religious character of a place of worship.”
Maintenance of Religious Character Section 4 (1) ensures that the religious identity of a place of worship remains the same as it was on August 15, 1947.
The CJI went ahead to say: “So the whole question is really on what is the religious character as on 15 August, 1947.”
Again in October 2023, the Supreme Court said: “You are saying you are covered by the Places of Worship Act, 1991. You say you cannot alter the status as it existed as on August 15, 1947, and it cannot be converted also. Therefore, what was the religious character also has to be led by evidence. Is it not?”
(Edited by Richa Mishra)