As long as Indian courts are allowed to defy the spirit of the Places of Worship Act, 1991, bloodshed will follow the reopening of the wounds of history.
Harsh Mander
In Sambhal, a Muslim-majority medieval town in Western Uttar Pradesh, six men have died after being gunned down on November 24 and many more injured. The police fired on protesters agitated by a survey of the Shahi Jama Masjid. The survey, set up to investigate if centuries earlier the mosque had been built after demolishing a Hindu temple, had been ordered by a local court. The judge was not constrained by the prohibitions imposed by The Places of Worship Act, 1991, that the religious character of no place of worship could be changed from what prevailed on the day India became free.
Sambhal was briefly the capital both of the Lodi dynasty and of the first Mughal emperor Babar. During the short reign of the emperor Babar from 1526- 30, three major mosques were built. One was in Ayodhya, the second in Panipat and the third in Sambhal. The mosque in Ayodhya became the locus of a nationwide militant movement that charred India’s secular democracy and in significant ways transmuted the course of the Indian republic. Three decades after the mob demolition of the Babri Masjid, Hindutva activists now are seeking to light similar fires in Sambhal.
Advocate Hari Shankar Jain, also a lawyer in the Gyanvapi mosque-Kashi Vishwanath dispute, petitioned a local court with the claim that the Shahi Jama Masjid in Sambhal was built after destroying a temple to Lord Kalki. Other petitioners included Rishiraj Giri, the mahant of the Kalki Devi temple in Sambhal.
The mahant a year earlier had spoken to Hari Shankar Jain of his contention that the mosque was built after destroying a temple. In a foyer of his temple, the mahant recites this couplet to his followers and the policemen who the Uttar Pradesh government has deputed for his protection: “Paanch sadi se jama rakt jab sholay ban kar khaulega, Babar bhi tab kabr se uth kar Harihar, Harihar bolega.” When the frozen blood of five centuries comes to a boil, even Babar will rise from his grave and chant ‘Harihar, Harihar’.
Their petition claimed that a “centuries old Shri Hari Har Temple dedicated to Lord Kalki” stands in the heart of the city of Sambhal which is being used “forcibly and unlawfully” as a mosque by the Jama Masjid Committee. “Sambhal is a historical city and holds unique significance deeply rooted in Hindu Shastras, according to which it is a sacred site where an incarnation of Lord Vishnu known as Kalki (will) manifest in the future, a Divine figure yet to make an appearance”.
Kalki, the petitioners explain “is believed to be the 10th and last incarnation of Lord Vishnu, destined to arrive in Kalyuga. His descent is believed to herald the end of the dark and tumultuous Kalyuga ushering in the next age, known as Satyuga”. The “Shri Hari Har temple of Sambhal was made by Lord Vishwakarma Himself in the beginning of the universe”. Incidentally, the petition makes these claims under the heading “historical facts”.
The petitioners went on to allege that when Mughal emperor Babar invaded India, he “destroyed a number of Hindu temples to show the might of Islam to make the Hindus feel that they are subjects of Islamic ruler”. “(I)n 1527-28 Hindu Beg, the Lieutenant of (the) Babar Army partly demolished Shri Hari Har temple at Sambhal” and “the Muslims occupied the temple building to use the same as mosque (sic)”.
Just hour after that this application was filed, the same day – notably without issuing a notice or hearing the caretakers and clergy of the mosque – the civil judge of the Chandausi court, Aditya Singh, on November 19 ordered a survey with videography of the mosque by a team led by an advocate commissioner, to be completed by November 29.
With the same unseemly haste, the team, which also significantly included the sub-divisional magistrate as a representative of the state government, arrived at the mosque that very evening and commenced the survey. Neither the mosque management nor local residents mounted any resistance to the survey that day because they were taken by surprise.
But when five days later, the team arrived again with a massive posse of armed policepersons and a crowd raising slogans of Jai Shri Ram, the sub-divisional magistrate peremptorily ordered measurement of the underground tank in which worshippers would wash themselves before prayer. Rumours spread that the mosque would be demolished. Agitated crowds rapidly gathered, some people threw stones, and the police began to fire at the crowds. Four men were killed and numerous others were injured close to the mosque. At least two more died later.
The police later mounted their defence that they had not shot to kill. They had deployed only rubber and pellet guns. The bullets that claimed lives, they maintained, were fired from country-made weapons and not police rifles. But local people allege that it has become standard police practice for the police to shoot to kill at crowds with country-made weapons so that the resultant deaths could never be traced back to the police.
A judicial enquiry has been ordered into the incident. Given past experience, there is not much hope for courageous truth-telling that we might vest in this process. But whatever the report finally avers, there can be little dispute that it was the order of the local judge to institute a survey of the mosque, and the willing participation in the survey of a senior officer of the district administration, that ignited the fires that grew quickly into the conflagration that claimed so many young lives.
The hasty order was unlawful, first, because the judge passed his directions without even hearing the management and clergy of the medieval mosque. It did not allow them time to challenge the order in the High Court. What is more, the Shahi Jama Masjid in Sambhal was notified a “protected monument” as far back as on December 22, 1920, under the Ancient Monuments Preservation Act, 1904, and later was also declared a Monument of National Importance. These qualified the mosque for special protection by the state.
But even more culpably, the order defiantly violated the law of the land. The Places of Worship Act, passed by Parliament in 1991, unequivocally bars any change in the religious character of any place of worship from what prevailed in 1947 (except on the site on which the Babri Masjid stood in Ayodhya), and prescribes stringent punishment to anyone who seeks to do so.
The Shahi Jama Masjid in Sambhal is a 16th-century mosque. It was indisputably a mosque also in 1947. Based on a simple reading of the 1991 statute, the judge should have refused to admit the petition, because the central redress that it sought – permission for Hindu worshippers to pray at the mosque – was one that the law did not permit. Arguably, the judge should have also prosecuted the applicants for seeking to change the status of the mosque, which the 1991 statute made punishable with three years’ imprisonment.
However, the civil judge in Sambhal is not alone in passing such an unlawful order. In the past two years, other local courts have delivered similar rulings, which have been upheld by various High Courts. Superior courts in recent years have held back from upbraiding, or even restraining, lower courts from entertaining petitions that seek to alter mosques into Hindu temples, title suits in disputed religious sites and suits claiming access or the right to Hindu worship in mosques.
Much of this was enabled by a highly consequential observation made by the former Chief Justice DY Chandrachud in the Gyanvapi mosque case, that opened the floodgates for this series of orders by courts that run contrary to the 1991 law. Five Hindu women had filed an application in the Varanasi Civil Court in August 2021, seeking permission to worship Hindu idols. They claimed that these were located within the mosque, and that the mosque was built after the Kashi Vishwanath temple was razed by Mughal Emperor Aurangzeb. In April 2022, the civil court judge ordered a “videographic survey” (similar to the one later ordered in Sambhal) to investigate the claim. This order was upheld by the Allahabad High Court. The Management Committee of the mosque then sought the intervention of the Supreme Court, arguing that the survey violated the Places of Worship Act.
In May 2022, Chief Justice DY Chandrachud, when hearing the matter, observed that although changing the nature of the religious place is barred under the 1991 law, the “ascertainment of a religious character of a place, as a processual instrument, may not necessarily fall foul of the provisions of Sections 3 and 4 (of the Act)”. What this meant was that the 1991 law does not bar investigations into what was the nature of the place of worship on August 15, 1947. What the law only bars is changing the religious character of the place of worship after the study.
This was an extraordinary and perplexing observation by the head of the highest court of the land. If you allow the survey of a mosque to determine if a temple lay below it, but then prohibit actions to restore a temple at that site, this is a surefire recipe for fostering resentment, hate and fear that could detonate for years in bitter feuds between people of diverse faiths.
His observation permitted the order of the civil judge in Sambhal that ultimately resulted in the death of six men. It authorised what the Supreme Court Observer describes as “a bevy of challenges to the religious character of places of worship” in the wake of Gyanvapi. “The Mathura District Court admitted a petition claiming the presence of Hindu ‘artefacts’ at the Shahi Idgah Masjid. In Karnataka, the Narendra Modi Vichar Manch is seeking permission to allow prayers inside a mosque in Srirangapatna – claiming it was built on top of a Hanuman temple during the reign of Tipu Sultan. In these cases, and in many others , ‘surveys’ are being sought…”.
There was also a suit demanding restoration of the right to offer puja in the Qutub Minar complex on the grounds that it was originally a complex of 22 Hindu and Jain temples. The newest claim, even as I write this article, is by the Hindu Sena chief that the Ajmer Sharif Dargah – the mausoleum of the Sufi saint Khwaja Moinuddin Chishti – is actually a Shiv Temple. The civil judge thought it fit to admit even this petition and issue notices.
Was Justice DY Chandrachud correct in his interpretation of the intent of the 1991 law when he allowed investigations into whether Hindu temples lay under mosques that stood in 1947? Or was he gravely misled? The 2019 Ayodhya judgement (of which he has come out as the author) had affirmed that the 1991 law was passed to ensure that history could not be used as “a tool to dredge up old disputes and start conflicts anew”?
By permitting surveys to investigate if mosques indeed were built after destroying Hindu temples, did he not authorise precisely the reverse? Did he not enable Hindutva organisations, often supported by the ruling party and elected governments, to prise open the past, revive old combats and create new ones, and in this way perilously deepen communal fractures and fuel religious battles that could rage over generations?
To answer this, to affirm the intent of the Places of Worship Act, I went back to the debates in Parliament when the Bill was introduced and passed. Reading these parliamentary records stirred memories of a time three decades back when political leaders were far more articulate and impassioned than they are today in their defence and celebration of the ideals of secularism and pluralism.
The year was 1991. Forty-four years had passed since the Partition riots had taken a million lives in a tumult of religious hatred, and Mahatma Gandhi was assassinated by a religious bigot. The first decade-and-a-half of freedom had been marked by relative communal peace, but violent communal conflicts resurged in the country after the Jabalpur riots of 1961. By 1991, communal tempers in the country were smouldering. Two years earlier, senior Bharatiya Janata Party leader Lal Krishna Advani had set out on his Rath Yatra starting from Somnath demanding the construction of a Ram Temple at the site of the Babri Masjid in Ayodhya.
Wherever the Yatra traversed, it left a combustible trail of communal hatred and bloodletting. The Babri Masjid was still standing at Ayodhya. But Hindutva ideologues had begun to speak shrilly of their resolve to “reclaim” 3,000 mosques across the country. Senior leaders of the BJP threatened to launch campaigns similar to the one for a Ram Temple in Ayodhya, to lay claim to the Gyanvapi mosque in Varanasiand the Shahi Idgah mosque in Mathura.
It was in these times that the Home Minister SB Chavan introduced the bill in Parliament, with words that are even more incandescent today: “We see this Bill as a measure to provide and develop our glorious traditions of love, peace and harmony,” he declared. “The country’s tradition of amity and harmony came under severe strain during the pre-Independence period. After Independence, we have set about healing the wounds of the past and endeavoured to restore our traditions of communal amity and goodwill to their past glory. I am sure that enactment of this Bill will go a long way in helping to restore communal amity and goodwill”.
He explained that his government did “not to (intend to) create new disputes and to rake up old controversies which had long been forgotten by the people”. Instead, it “considered (it) necessary to adopt these measures in view of the controversies arising from time to time with regard to conversion of places of worship which tend to vitiate the communal atmosphere”.
Predictably, the Bill was bitterly opposed by the BJP members. Advani, the leader of the opposition, led a walk-out to protest the Bill with the indictment, “I believe that this Bill is thoroughly ill-conceived. The Bill is totally unwarranted. We cannot associate ourselves with this Bill. We are opposing its introduction and in protest, we walk out”.
An important leader of the Ram Janmbhoomi movement, Uma Bharti, passionately argued in the house against the Bill. “Can we alter historical facts through a manipulation of dates? Are we scared to face history?” she asked rhetorically. She spoke of the shame she felt when she visited Varanasi and saw in the campus of the mosque the ruins of a temple. Temples destroyed in history need to be returned, she argued, in order “to ensure that our future generations may live in harmony. Ask forgiveness from the Lord for all wrongs done in the past and make all our efforts to avoid bloodshed in the future”. She alleged, “By maintaining the status quo of 1947, it seems you are following a policy of appeasement.”
Another BJP MP Ram Nagina Mishra described this as “a black Bill…introduced with a view to disintegrate the country…” He claimed that “it is on record” that not a single mosque has been damaged through India’s history. He appealed that the Bill be set aside “so as to keep the nation united and devoid of communal flare up”.
Veteran BJP leader Ram Naik was even more withering in his criticism of the bill, describing it as the “blackest” bill in Indian Parliament. This bill, he claimed, sought to “legalise all encroachments upon Hindu Temples made during Mughal and British rule”. It wants to “pay premium to those who have inflicted religious insults on Hindu places of worship”.
But non-BJP parliamentarians across parties spiritedly defended the bill. Mani Shankar Aiyar responded to Uma Bharti. She “told us that when she had visited Varanasi and saw a temple and a mosque together, a feeling came to her that the temple had been demolished. She considered it to be a disgrace to Hinduism. According to her a Muslim king had built a mosque there. There is only one difference between her and myself, to what she thinks is a sign of servility, I take that thing as a symbol of secularism… When I come across a temple and a mosque together, then I feel that it is a secular country”. He went on to affirm that “as we cannot think of India without Islam, in the same way we cannot think of Islam without India. Islam and India are linked in the same way as both myself and Uma Bhartiji have links with humanity”.
An MP from the Communist Party of India (Marxist), Malini Bhattacharya, said that the cut-off date in the Bill was “crucial because on that date [August 15, 1947], we are supposed to have emerged as a modern, democratic and sovereign state thrusting back such barbarity into the past once and for all. From that date, we also distinguished ourselves… (by establishing) a state which has no official religion and which gives equal rights to all the different religious denominations. So, whatever may have happened before that, we all expected that from that date, there should be no such retrogression into the past.”
Congress MP KV Jacob spoke glowingly of Trivandrum, the capital of his state Kerala, where in the same compound you see a “beautiful temple”, a “beautiful mosque” and a “beautiful church” together. He spoke of the custom in every faith that when you worship in a shrine of your faith, you pray also in shrines of other faiths. “There is only one God”, he averred, who we worship in different ways. It is a tragedy that we fighting in the name of religion. Enough blood has been spilled; we killed even the father of the nation. He was certain that even if Lord Ram appeared he would instruct his followers to instead build thousands of shelters for homeless people. He spoke of his own religious faith: “When I worship Jesus Christ and hate my neighbours who are Hindu or Muslim, then I am not a true follower of Jesus Christ”.
The Minister of State for Home Affairs then, MM Jacob, similarly argued that the “essence of all the religions in this country…is love and affection towards one another. I have not come across any religion that preaches hatred. So, when all the religions stand for love with one another and to serve humanity and sacrifice life-if it is necessary for our brothers and sisters-I do not find any reason at all for a fight ofthis nature… If you are really religious…our effort (would be) to establish peace at any cost”.
Ram Vilas Paswan agreed that “the very objective of religion is to remove darkness and provide light and knowledge. A lamp can be used to light up a house as well as to burn it down. Unfortunately, today, religion is being used to spread hatred and disharmony”. “(T)oday the question is not”, he said, “of Hindu-Muslim, nor of temple, mosque or gurudwara. Today, the issue at stake is our Constitution. The issue is to save that India, for whose freedom Hindus, Muslims, Sikhs and Christians had fought together…” Such a statute was imperative “because India is the home of people belonging to many religious denominations. Our country is like a garden” in which “not one but all the flowers will be given the opportunity to blossom”. He said that “this country cannot afford to squabble over trifling issues like mandir or masjid. We have far more important problems before us – the problems of poverty, that of unemployment, that of illiteracy, that of rural water supply”.
“I consider that the anguished soul of India does not today cry for a new temple or a mosque or a gurudwara”, senior Marxist parliamentarian Somnath Chatterjee declared. “What it seeks is a dignified and civilised living for all its people, irrespective of caste, creed or religion. It clamours that all our people have two square meals a day have a roof over their heads, ability to read and write, and freedom from exploitation, hunger, starvation, unemployment, ill-health and squalor”.
The significance and the purpose of the Places of Worship Act, so eloquently described by the parliamentarians of that time, was recalled as recently as in 2019 by the Supreme Court. In its landmark but highly contestable ruling awarding the land on which the Babri Masjid had stood for centuries for the building of a Ram Temple, it observed that the cut-off date in the law of August 15th, 1947 had been fixed to acknowledge that India’s Independence presented an opportunity to “heal the wounds of the past”.
In mandating the preservation of the religious character of places of public worship as they existed on August 15, 1947, “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 judges held that the “court cannot entertain claims that stem from the actions of Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer…”
The judgement significantly linked this statute to the core values of the constitution. “The state has, by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism, which is a basic structure of the Constitution.”
If indeed the Places of Worship Act, 1991, is critical to preserve the secular character of the Constitution, we have to conclude that Justice Chandrachud was culpably in error when he observed that although the 1991 statute barred converting the religious character of a place of worship, it was still lawful to determine its original character. As Sanjay Hegde, senior advocate in the Supreme Court, argued while speaking to Frontline, even if the surveys showed the existence of a structure 400 years ago, the legal character of that place would not change because of the 1991 law. “We are not concerned with what happened 400 years ago but what the status was on August 15, 1947”.
Syed Ali Nadeem Rezavi, a history professor at Aligarh Muslim University, secretary of the Indian History Congress, agreed. “Even if (surveys reveal that) a temple was there, how does it make a difference? Aurangzeb was a sovereign emperor not guided by a democracy and a Constitution. He was a man of the 17th century. Are we also going to punish Pushyamitra Sunga, who went on a demolition spree against Buddhist temples?” he asked. “I am not concerned about what the BJP is doing. I am concerned that those sitting in our highest courts have forgotten the Constitution and all the Acts of Parliament to protect the heritage structures.”
The truth is that the fateful observation of former Chief Justice DY Chandrachud that the 1991 law does not bar investigating the religious character of places prior to 1947 has spawned a rash of court orders to survey historical mosques to determine if they were built centuries back after destroying temples. It has enabled Hindutva organisations, supported by the ruling party and elected governments, to dangerously, even recklessly prise open the past. It has helped revive old contestations and manufacture new ones, and through this perilously exacerbated communal fractures, fuelling religious battles that could rage for generations. Of all of Justice Chandrachud’s controversial judicial acts, history may judge this to have been the most damaging to India’s social fabric.
Justice Sanjiv Khanna, who succeeded Justice DY Chandrachud as chief justice, did well to stay the survey of the mosque in Sambhal to douse the fires there. The court directed the litigants to approach the High Court for further directions. But the chief justice did nothing to overturn the observation of his predecessor that greenlit the survey in Sambhal and of several other mosques. No High Court can reverse the interpretation of law by the Supreme Court, it is only the Supreme Court that is empowered to do this. As long as the former chief justice’s observation stands, the nightmare continues to loom of yet more temple-mosque combats ignited by court-ordered surveys further gashing the soul of the country.
The purpose behind the Places of Worship Act 1991, so powerfully articulated by the parliamentarians of that time, was to secure India’s secular democracy. The violent contestation over a single mosque, in Ayodhya, tore the nation apart for a generation and longer. Its ruptures still run deep. By allowing courts across the land to defy the spirit of the law and reopen the wounds of history, India’s highest judiciary, its local courts, the largest political party and even the feeble opposition have profoundly failed the people of India.
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