When the Gyanvapi Masjid dispute reared its ugly head almost after two decades, thanks to a local court allowing the survey of the mosque premises, one was hoping that the Supreme Court would nip it in the bud. But, in a major disappointment, the apex court refused to stay the survey and instead transferred the matter to the district court. What’s worse, it sought to reinterpret and effectively weaken a law that was responsible for keeping Gyanvapi and other such issues at bay for a long period.
The Court was reluctant to go into the merits of the case. However, it still went on to comment that the Places of Worship (Special Provisions) Act 1991 doesn’t prohibit ‘ascertainment of the religious character of a place. This is a very dangerous position and could give fresh ammunition to those trying to fan communal flames.
The intent behind the Places of Worship Act was very clear: to put an end to claims based on correcting “historical wrongs”—the Ayodhya dispute was excluded from the ambit of the law. The act used the language of protecting the “religious character” of places of worship for this purpose. The term was supposed to be very clear in its meaning and intent. It didn’t imply anything other than the existing status and usage of a place. However, the court followed the line of the Hindutva side and chose to problematize this unambiguous term, which is par for the course in these post-truth times.
While this position is not only at odds with the spirit of the Act but is also practically unviable. If this is how the court understands the law, what stops anyone from claiming a right to worship at or a title to literally any place of worship anywhere in the country? If all it takes to dispute the nature and character of a place of worship is a civil suit, the courts will be flooded. In fact, many such claims are already springing up across the country. A local court has admitted a petition to remove Shahi Idgah in Mathura and declared it outside the ambit of the 1991 Act.
Justice DY Chandrachud of the Supreme Court used an Agiary-Cross analogy to make its point about the necessity to determine the religious character of a place:
“Suppose there is an agiary (fire temple). Suppose there is a cross in another segment of the agiary in the same complex… Act applies to it. Does the presence of the agiary make the cross an agiary? Does the presence of a cross make the agiary a place of Christian worship? Therefore, this hybrid character, forget this arena of contestation, is not unknown in India. What does the Act, therefore, recognize? That the presence of a cross will not make an article of Christian faith into an article of the Zoroastrian faith, nor does the presence of an article of Zoroastrian faith make it an article of Christian faith.”
There’s a basic flaw in how the Supreme Court framed these questions. It has brought a physical space (agiary) and a physical object (cross) on an equal pedestal, treating them both as some kind of abstract entity. Such a framing will make the judicial process highly subjective and arbitrary. This is the precise trap the 1991 act was hoping to avoid.
And since the judiciary has taken it upon itself to ascertain the nature and character, what parameters will it use for this purpose? Can a court settle these disputes on the basis of the mere presence of some symbols and motifs? Will the court limit itself to legal documents or go into religious and historical texts? Even historians and anthropologists are often divided over the origins of various places and practices. In such a scenario, how will courts determine the exact nature and character of a place of worship?
As SC itself has pointed out, it’s not uncommon for a heterogeneous country like India to have different cultures mixing and borrowing from each other. There are Hindu temples with Buddhist and Islamic motifs, while many of the older mosques used an architectural style similar to temples. Even within a particular religion, there are numerous sects and denominations. How will the courts ascertain if a place belongs to Shia Muslims, Protestant Christians, or Digambar Jains?
Senior Advocate Huzefa Ahmadi, who appeared for Gyanvapi Masjid’s managing committee Anjuman Intezamia Masjid, Varanasi, had made this argument in vain:
“Because there are a large number of places in India where you have had these sorts of multiple religions, a temple, a mosque, a Buddhist temple earlier, a different temple later, a Jain temple earlier, a Vaishnavite temple later. It is precisely this sort of controversy which the Act wanted to interdict and the object that it should not be allowed to fester.”
If the court decides to wade into these questions, despite lacking any expertise on the subject or availability of any absolute answers, it will invariably end up resorting to the highly problematic way of the Ayodhya verdict of settling contested historical claims. In the Ayodhya case, the court placed a differential burden of evidence on the mosque and mandir sides. While the former was required to show proof of uninterrupted Namaz in Babri Masjid for hundreds of years, the purported discovery of a ‘non-Islamic structure’ in an archaeological survey, the mention of Hindu worshippers in some travelogues and the folklores about Ram’s birthplace were enough for the court to rule in favor of the latter.
While the court insists that the Gyanvapi matter is different from the Ayodhya case as the former is a suit for worship while the latter was a title suit, no one can dispute the underlying desire of “correcting historical wrongs” in both the petitions. If the court chooses to overlook this deliberate attempt to snatch from Muslims their places of worship and their dignity, we may end up with another unjust, majoritarian judgment.
