The legal battle over the validity of the Places of Worship (Special Provisions) Act of 1991, which underlines the need to protect the liberty of faith and worship, is gaining steam in the Supreme Court.
Several petitions have been filed in the top court questioning the law's role, as they say, in perpetuating the "crimes of the barbaric invaders" who built mosques after destroying temples centuries ago. The Muslim bodies, such as the Jamiat Ulama-i-Hind, have countered that a dent in the 1991 Act would be the first blow to the secular fabric.
Ayodhya verdict
Jamiat, significantly, is using the Ayodhya judgment, seen as the harbinger of the slew of litigation concerning other mosques, to buttress its case in support of the 1991 Act. The Muslim body stressed that the Ayodhya verdict, which upheld the Places of Worship Act, had noted that “historical wrongs cannot be remedied by people taking the law in their own hands”.
In the Ayodhya judgment, the court had categorically held that the law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course which history has taken. The courts of today cannot take cognisance of historical rights and wrongs. In fact, the Ayodhya judgment had held that the “Supreme Court cannot entertain claims that arise from actions of the Mughal rulers against Hindu places of worship in a court of law today”.
Jamiat has reminded the Supreme Court how even during the hearing of the Ayodhya case there was a “list of numerous mosques doing the rounds on social media, alleging that the said mosques were built allegedly by destroying Hindu places of worship”. It argued that entertaining petitions challenging the validity of the 1991 Act would open the floodgates and widen the “religious divide from which the country is recovering in the aftermath of the Ayodhya dispute”.
Gyanvapi case
But the court’s recent oral observations in the Gyanvapi case has not helped. The court had not intervened in the survey of the Gyanvapi mosque premises and said that a mere “ascertainment of the religious character of a place is not barred by the 1991 Act”. As regards the finding of articles identified with another religion on the premises of a place of worship, the court had said that “this hybrid character is not unknown in India”.
Within days of these observations, advocate Ashwini Upadhyay, who has challenged the 1991 Act separately, moved an application to implead himself in the Gyanvapi case. He argued that demolition of a temple's structure and subsequent offerings of namaaz did not change the character of a land where once a temple stood.
He said a mosque constructed on temple land cannot be a mosque and is against Islamic law. His petition squarely blamed the 1991 Act of “validating the illegal and barbarous action of invaders”.
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Another petition filed by Anil Kabotra in the Supreme Court takes on an identical note by saying that mosques have to be constructed on “legally owned” and “virgin land”. “Temple’s religious character does not change after demolition of roof, walls, pillars, foundation and even offering namaaz. After the Pran Pratishtha of the idol, a temple is always a temple”.
A petition by Devkinandan Thakur echoes the same notions of “historic wrong”. “It is a historical fact that in 1192 the invader Mohammad Ghori after defeating Prithviraj Chauhan established Islamic rule and foreign rule continued up to August 15, 1947… therefore, any cutoff date could be the date on which India was conquered by Gori and the religious places of Hindus, Jains, Buddhists, Sikhs as were existing in 1192 have to be restored with same glory,” Mr. Thakur urged.
