Court’s order and the ASI survey are flawed

General Studies Paper 1

Context

• In its judgment recently a Constitution Bench of the Supreme Court of India, comprising the Chief Justice of India (CJI) and others interpreted the Places of Worship (Special Provisions) Act, 1991 and gave a binding declaration of the law interpreting the Act, which, under the constitutional scheme, becomes the law of the land and binds all courts within the territory of India under Article 141 of the Constitution of India.

Constitutional basis to an assurance

• The Preamble to the Act states: “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.”
• The law has been enacted to fulfil two purposes. First, it prohibits the conversion of any place of worship. In doing so, it speaks to the future by mandating that the character of a place of public worship shall not be altered.
• Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947 when India achieved independence from colonial rule.

Places of worship

• “Place of worship” includes temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called.
• Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered.
• The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past.
• Historical wrongs cannot be remedied by the people taking the law in their own hands.

Issues

• The Bench has singularly failed to follow a binding precedent to which Justice Chandrachud himself was a party in the Ram Janmabhoomi temple case.
• There can be no doubt in anyone’s mind that the Gyanvapi mosque has been a place of public worship for centuries for Muslims and, therefore, there is an absolute and total bar on changing its character in any manner, into a place of worship of a different religious denomination.
• The Supreme Court has completely overlooked that the obligations under the Act were upon the state as also on every citizen of the nation and those who govern the affairs of the nation at every level were bound by it.
• The Supreme Court is the ultimate custodian of constitutional values and morality.
• Applying the spirit of the judgment of Ram Janmabhoomi temple case, the three courts ought to have been extraordinarily mindful about the rights and feelings of the minority community.
• Bigotry during parts of the Islamic period has always stood condemned; in fact that led to the rise of the powerful Marathas, Rajputs and Sikhs, resulting in overthrowing the Muslim empire.

The opening of a Pandora’s box

• We must remember that while injustice was done to the Hindus by Muslim rulers, democratic India cannot perpetuate them to undo them.
• One can only remember that rulers like Akbar respected Hindus and allowed religious freedom to them.
• The Bhakti movement which produced some of the greatest saints such as Chaitanya, Surdas, Tulsidas, Gopala Bhatt, Sankardeva, Eknath, Tukaram, Dadu, Meera Bai, and Guru Nanak raised the status of non-Brahmins, especially Dalits amongst Hindus. In that sense, religion was democratise.

Conclusion

• When history is written in future, there should not be any reference that the Hindus of the 21st century indulged in religious bigotry. For over 5,000 years Hinduism has been a way of life and one of the greatest religions marked by Liberalism, Tolerance and Absorption. Let us hope for peace and prosperity in our beloved India.