In The Deep Freeze – India Legal

By Dr Swati Jindal Garg

Mahatma Gandhi had rightly stated: “I don’t count on India of my desires to develop one faith, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, however I would like it to be wholly tolerant, with its religions working facet by facet with each other.”

India, the most important democracy on the planet, takes satisfaction in the truth that it’s a secular nation. The phrase secularism nonetheless, was by no means clearly outlined by both our constitutional consultants or political ideology as there are a number of issues in defining secularism within the Indian context. Each throughout colonial and post-colonial intervals, Indian society has been a standard society dominated by varied customs and traditions with deep spiritual orientation. For the liberal and progressive intellectuals, then again, secularism meant whole exclusion of faith from the political enviornment which can be a close to not possible job bearing in mind the truth that a lot of the Indian political events have aligned themselves with one color or the opposite!

Repeatedly, the secularism debate has risen its head within the Indian context and issues have been taken to courtroom one after the opposite. In one other such case,  the Supreme Court docket that had constituted a particular bench to listen to a clutch of pending petitions difficult the constitutional validity of the Locations of Worship (Particular Provisions) Act, 1991 has lastly put a freeze over the submitting of any new petitions that problem the veracity of the locations of worship. The particular bench includes Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and KV Viswanathan. The petitions filed earlier than the apex courtroom are all, in somehow, difficult the Act, which left solely the Ayodhya problem to be determined by the courts and froze the standing of anywhere of worship as was on the day of India’s independence. Whereas the difficulty continues to be to be determined and the Act is  below problem earlier than the Court docket, fits are additionally being filed in numerous courts for surveying mosques believed to have been constructed on websites the place temples as soon as existed.

The truth is, such was the furore created that the previous Supreme Court docket choose Rohinton Nariman expressed concern over the fits in search of surveys of mosques and dargahs whereas delivering the inaugural lecture of the Justice AM Ahmadi Basis. “We discover at the moment, like hydra heads popping up everywhere in the nation, there’s go well with after go well with filed far and wide… Not solely regarding mosques but additionally dargahs. All this may result in communal pressure and disharmony, opposite to what’s envisaged in each our Structure and the Locations of Worship Act,” he stated.

Referring to what was stated of the Act within the 2019 verdict on the Ayodhya matter by a five-judge Structure bench, Justice Nariman additionally stated: “This very Structure Bench spends 5 pages on it and says that in secularism, which is part of the Primary Construction, you can not look backwards, it’s important to look ahead… Each spiritual place of worship is frozen to fifteenth August 1947. Now anyone who tries to vary this, these fits will stand dismissed.”

The Locations of Worship (Particular Provisions) Act, 1991, the constitutionality of which is at present below problem earlier than the Supreme Court docket, mandates that the character of all locations of worship, besides the one in Ayodhya that was then below litigation, shall be maintained because it was on August 15, 1947. The Act was introduced in by the PV Narasimha Rao-led Congress authorities in the course of the time when the “Ram temple motion” was at its top and was additionally meant to use to the disputed Kashi Vishwanath temple-Gyanvapi mosque advanced in Varanasi together with the Krishna Janmabhoomi temple-Shahi Idgah mosque advanced located in Mathura.

The Act principally  declares that the character of a spot of worship as of August 15, 1947, shall be maintained and that no go well with or continuing shall lie in any courtroom in respect of any dispute in opposition to the encroachment of any spiritual properties at any time limit earlier than this date. Key provisions of the Act below scrutiny embrace Sections 2, 3 and 4, which bar conversion of spiritual websites and lawsuits relating to their character as of 1947. Part 3 of the Act bars the conversion of locations of worship. It states: “No particular person shall convert anywhere of worship of any spiritual denomination or any part thereof into a spot of worship of a distinct part of the identical spiritual denomination or of a distinct spiritual denomination or any part thereof.”

Part 4 additional bars submitting of any go well with or initiating another authorized continuing for a conversion of the spiritual character of anywhere of worship, as present on August 15, 1947. It additional goes on to say that any such pending continuing shall stand abated and that any continuing filed on the grounds that conversion of spiritual place has taken place after August 15, 1947, and earlier than September 18, 1991 (when the Act got here into existence), shall be disposed of to keep up the standing because it existed on August 15, 1947. 

A lot of the petitions filed earlier than the courts, problem the Act on the grounds that it bars the treatment of judicial overview as was laid down by the Supreme Court docket, in its 1980 judgment in Minerva Mills Ltd. & Ors vs Union Of India & Ors, whereby the Court docket had held that the precept of judicial overview was a fundamental characteristic of the Structure and, due to this fact, exterior the legislative competence of Parliament. “The ability of judicial overview is an integral a part of our constitutional system and with out it there shall be no authorities of legal guidelines, and the rule of legislation would develop into a teasing phantasm and a promise of unreality. If there’s one characteristic of our Structure which, greater than another, is fundamental and elementary to the upkeep of democracy and the rule of legislation, it’s the energy of judicial overview and it’s unquestionably part of the fundamental construction of the Structure,” the Court docket noticed.

The petitioners additionally contend that the Act violates ideas of secularism, the rule of legislation, and cultural heritage, deeming it unconstitutional for closing courts to disputes over locations of worship appropriated by invaders and worse nonetheless, legitimizing historic actions by rulers corresponding to Babar, Humayun, and Tughlaq.  

The petition below dialogue was filed manner again in June 2020 by a Lucknow-based belief, Vishwa Bhadra Pujari Purohit Mahasangh, that had moved the Supreme Court docket, difficult the Act. Later, the Jamiat Ulama-i-Hind, too, reached the Court docket, in search of permission to be made a celebration within the matter claiming that “even issuance of discover within the… matter will create concern within the minds of the Muslim group with regard to their locations of worship, particularly within the aftermath of the Ayodhya dispute and can destroy the secular material of the nation”.  

Following this, many extra petitions had been filed on this matter, together with one which was filed by a  consultant of the erstwhile royal household of Kashi that stated: “For a laws that shuts the doorways of justice to affected communities and events, it was “debated” solely on three dates i.e., 23.08.1991, 09.09.1991 and 10.09.1991, and the Invoice was handed on the final of the stated dates”. “The talk of 23.08.1991 clearly captures the truth that the interval of seven days’ discover was not afforded to the members of the Lok Sabha earlier than the Locations of Worship (Particular Provisions) Invoice dated 22.08.1991 was launched,” the petition additional said.

Presently, roughly 18 fits regarding 10 mosques or shrines are pending throughout the nation. The centre has been granted time to submit its affidavit addressing the provisions of the Act, which, petitioners declare is unconstitutional and denies the rights of Hindus, Jains, Buddhists, and Sikhs to revive their locations of worship destroyed by historic invaders. They  additionally contend that the end result of the case might impression the continuing lawsuits filed by Hindu plaintiffs in search of rights to properties containing Muslim mosques, based mostly on claims that these mosques had been constructed over historic temples. 

Stating that it didn’t wish to multiply the variety of writ petitions on the identical problem, the Court docket had lastly issued instructions and requested the events to file intervention functions as a substitute following which the administration committee of the Gyanvapi mosque in Varanasi too has filed an intervention utility, saying the “penalties” of permitting such pleas “are sure to be drastic”. The mosque committee additionally pointed to the violence in Sambhal, Uttar Praesh that occurred as a result of permission granted by a courtroom to conduct the survey of the Shahi Jama Masjid by permitting an utility for the appointment of a survey commissioner on the very day the go well with was presented-

“The incident led to widespread violence and has claimed, as per experiences, no less than six residents’ lives. The declaration sought by the petitioner would imply such disputes elevating their head in each nook and nook of the nation and can finally obliterate the rule of legislation and communal concord.”

Regardless of objections raised by many events,  discover on the clutch of petitions was issued on  March 12, 2021, and the Court docket sought the centre’s response. Later, the listening to was adjourned a number of occasions following requests from the centre for extra time to reply. The federal government is but to file a reply.

The Supreme Court docket has now, reportedly, handed an order stating that no additional fits could be registered in opposition to locations of worship. These lawsuits which have already been registered will, nonetheless, proceed. The highest courtroom has additionally barred all courts nationwide from issuing any efficient interim or last orders, together with directives for surveys, in ongoing instances involving present spiritual buildings.

What comes out of those petitions, stays to be seen. What’s past doubt,  although, is that faith continues to be the substance that glues collectively in addition to divides this nation’s communities. 

—The writer is an Advocate-on-File practising within the Supreme Court docket, Delhi Excessive Court docket and all district courts and tribunals in Delhi