Controversy over Places of Worship Act: Secularism, justice and religious harmony in India

Shahi Jama Masjid in Sambhal (Representative photo)

The Places of Worship (Special Provisions) Act 1991 (hereinafter referred as “Act”), has been a subject of enduring controversy since its enactment. It stands as a deeply contentious piece of legislation, entwined in India’s complex history of religious conflict. Introduced in the aftermath of the Ayodhya dispute, the Act aimed to prevent recurrent religious confrontations over places of worship. Enacted during heightened communal tensions, particularly surrounding the Ram Janmabhoomi movement and the Babri Masjid dispute, the Places of Worship Act was a legislative effort by the Congress government led by Prime Minister P.V. Narasimha Rao to preserve communal harmony and avoid further conflict. However, the Act brings forth significant concerns about its alignment with the principles of justice and equality. Does it genuinely preserve the secular foundation of the nation, or does it inadvertently validate historical injustices in the name of social harmony? Fundamentally, the Act invites critical examination of whether it represents a moral framework or a contentious settlement disguised in the language of secularism. The claim that the Act promotes communal harmony is flawed—true secularism and harmony can only be achieved through justice for all communities, not appeasement. Thus, the Act perpetuates religious injustice and undermines the democratic rights of Hindus, making it both morally and constitutionally flawed.

The Act has sparked significant debate since inception. Hindutva proponents argue that it unfairly restricts Hindus, Jains, Buddhists, and Sikhs from reclaiming places of worship allegedly converted after independence, hindering religious restitution. In contrast, secularists and minority groups defend the Act, viewing it as essential for preventing communal tensions and preserving religious harmony by safeguarding the existing character of places of worship. Legal experts have also criticized the Act, particularly its prohibition on judicial review, arguing that it infringes upon the fundamental right to access justice. The Act, by preventing citizens from approaching courts to challenge the ownership of disputed religious sites, undermines judicial scrutiny, a cornerstone of democracy and the rule of law. This restriction not only violates the right to access justice but also fails to recognize the constitutional right of individuals to restore their religious and cultural heritage. The Act, far from promoting secularism, indirectly condones historical religious intolerance and iconoclasm, which runs contrary to the values of a secular society.

The Hon’ble Supreme Court of India on 12th December 2024, issued a directive barring all Lower Courts across the country from registering new suits or initiating proceedings that challenge the ownership and title of any place of worship. The Apex Court also prohibited ordering surveys of disputed religious sites until further notice. A Bench led by Hon’ble Chief Justice of India Sanjiv Khanna and Hon’ble Justices PV Sanjay Kumar and KV Viswanathan while hearing the constitutional validity of the Act emphasized that since the matter remains sub judice, no fresh suits shall be filed or registered, and no interim or final orders, including survey orders, shall be passed in pending cases until it concludes its hearing. As a result, the Lower Courts are also prohibited from ordering surveys or seeking reports from the Archaeological Survey of India (ASI), as has been done in several recent cases. All these civil cases have challenged the ownership of mosques, claiming they were constructed on Hindu religious sites that were demolished by medieval rulers.

Key provisions under review include Sections 2, 3, and 4 of the Act. These sections prohibit the conversion of religious sites and bar lawsuits challenging the religious character of places of worship as it existed on August 15, 1947. This approach of the Act has sparked criticism for allowing symbols of historical injustice to persist under the guise of maintaining communal harmony, effectively granting legal respectability to past wrongs.

Petitioners, including religious leaders, politicians, and advocates, argued that the Act infringes upon the constitutional rights of Hindus, Jains, Buddhists, and Sikhs under Article 25 (Freedom of Conscience and Free Profession, Practice, and Propagation of Religion), Article 26 (Freedom to Manage Religious Affairs), and Article 29 (Protection of Interests of Minorities). They claim the Act unlawfully restricts their ability to restore and manage their places of worship, thereby violating their religious freedoms and cultural rights.

The lead Petition challenging the Act has been filed by BJP leader and lawyer Ashwini Kumar Upadhyay in 2020, who alleged that the Act violates Articles 25 and 26 of the Constitution by restricting the right to practice and manage religious affairs. He argues that the Act is discriminatory, barring religious communities from approaching courts to reclaim places of worship and questioning the then Centre’s authority to enact such legislation. Other Petitioners include the Vishwa Bhadra Pujari Purohit Mahasangh, represented by Advocate Vishnu Shankar Jain, and BJP leader Subramanian Swamy. The Mahasangh contended that the Act denies judicial review, a fundamental feature of the Constitution, by preventing lawsuits to reclaim temple land destroyed by Muslim rulers. Swamy calls the Act “void ab initio,” claiming it infringes on Article 25 by barring Hindus from praying at temples converted during foreign invasions and seeks the same exemption granted to the Ram Janmabhoomi-Babri Masjid site for the Kashi Vishwanath and Krishna Janambhoomi Mathura temples. Similarly, pleas by Karunesh Shukla, Anil Tripathi, and Dinesh Sharma argued that the Act inflicts significant harm on Hindus, Jains, Buddhists, and Sikhs by denying judicial remedies and allowing the Centre to legitimize the atrocities of historical invaders, preventing citizens from restoring the cultural and religious heritage of their places of worship.

The petitioners have challenged the Act on two key grounds. Firstly, they argued that the Act undermines judicial review by extinguishing existing claims at the time of its enactment and prohibiting new claims in courts. Secondly, they contend that the Act is arbitrary for retrospectively selecting August 15, 1947, as the cut-off date to determine the religious character of places of worship. Petitioner and Advocate Ashwini Kumar Upadhyay, argued that the law unfairly denies Hindus, Jains, Buddhists, and Sikhs the right to approach courts to “reclaim” their places of worship allegedly “invaded” and “encroached upon” by “fundamentalist barbaric invaders.”

Several applications have been filed in support of the petitions seeking to repeal the Act. The Delhi-based NGO Hindu Shree Foundation, claiming to represent the interests of Hindu devotees globally, argued that the Act is arbitrary, asserting there is no logical connection between India’s political independence and resolving civilizational conflicts stemming from colonial erasure of Hindu identity and cultural imposition by Islamic invaders. Former MP Chintamani Malviya also challenged the Act, alleging that it violates the principle of secularism and should be repealed. Critics argue that the Act is void and unconstitutional for several reasons, including infringing on the rights of Hindus, Buddhists, and Sikhs to pray, profess, and propagate their religion, as well as depriving them of owning misappropriated religious properties belonging to deities. Additionally, they contend that the Act unlawfully bars judicial remedies, undermining the fundamental right to judicial review, which has been upheld by the Supreme Court as a basic feature of the Constitution. Furthermore, an application was also filed by Kumari Krishna Priya of the Kashi Royal family, alleging that the Act, is discriminatory for exempting the Ram Janmabhoomi but not the Kashi Vishwanath temple. The application also highlighted that the Idgah in Mathura is adjacent to the Sri Krishna Janmabhoomi Sthal, believed to be the birthplace of deity Krishna, while the Gyanvapi case involves claims that the mosque is part of the Kashi Vishwanath temple.

Ironically, in the landmark 2019 Ayodhya verdict, a five-judge Constitution Bench of the Hon’ble Supreme Court described the Act as integral to the “basic structure of the Constitution.” Although the Act was not directly challenged in that particular case, the Court’s recognition of its importance in upholding constitutional values could play a significant role in shaping its scrutiny in the ongoing legal proceedings. With 18 lawsuits concerning 10 mosques or shrines currently pending across the country, the Supreme Court’s ruling will be pivotal in determining the fate of several contested religious structures, including the prominent cases of Gyanvapi Mosque in Varanasi, the Shahi Eidgah Mosque in Mathura, the Shahi Jama Masjid in Sambhal, and the Ajmer Dargah in Rajasthan. Notably, a 2022 bench led by then-Chief Justice DY Chandrachud allowed surveys to proceed while clarifying that the Act permits investigations into the status of places of worship as of August 15, 1947, provided they do not seek to alter their character. As these hearings progress, the Act will likely remain a focal point of legal and public debate. Striking a balance between preserving India’s secular fabric and ensuring justice for individual rights continues to be a delicate and evolving challenge. As India continues to evolve, the delicate balance between preserving religious harmony and safeguarding individual rights will undoubtedly remain a complex and contentious issue.

Let us look at the timeline for a better understanding of this complex issue:

1991: The Places of Worship (Special Provisions) Act was enacted, stating that the “religious character” of a place of worship will remain as it was on August 15, 1947, with the only exception being the “Ram Janma Bhumi-Babri Masjid.” The Ayodhya agitation was at its peak, and the Babri Masjid was still standing.

October 2020: The first petition challenging the Act was filed, followed by five more petitions. These challenges were based on the grounds of arbitrariness regarding the cut-off date and the fact that the Act takes away judicial review.

August 2021: Five women filed a suit in Varanasi seeking permission to pray at the Gyanvapi mosque.

May 2022: After the case reached the Supreme Court, then Chief Justice D.Y. Chandrachud orally observed that a survey “may not necessarily fall foul” of the Places of Worship Act.

2022-2024: At least six suits were filed claiming the past existence of a Hindu temple at the site of a mosque or dargah, with surveys ordered in three of these cases.

December 2024: The Supreme Court barred further survey orders, effective orders, and the registration of fresh suits.

This timeline illustrates the evolving legal battles and decisions surrounding the Act, underscoring the ongoing debate over religious rights, judicial review, and the preservation of communal harmony in India.