Md Saquib Madani & Nayab Gauhar
In his autobiography ‘My Country, My Life’, L.K Advani wrote “an exhilarating period of my life” while describing the Rath Yatra he took out on the 25th day of September 1990. But it was much more than a period of Advani’s life. As the yatra progressed throughout the country, communal clashes took place between Hindus and Muslims, resulting in the death of the masses. It changed the country’s political discourse, bifurcating two major communities on communal lines.
Given the rising support for the demolition of Babri masjid and the construction of a Ram temple, the then Congress government under Prime Minister PV Narsimha Rao passed “The Places of Worship (Special Provisions) Act” 1991 (PoW Act). According to the ‘Statement of Objects and Reasons’, the act sought to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947, and for matters connected therewith or incidental thereto so that no group can make any fresh claims about the past status of any place of worship. It was passed hoping that it would help in preserving the communal harmony in the country.
At the parliamentary proceedings, the then Home Minister, Shankararao Chavan, stated: “This act would prove effective in checking the growing communal feeling within the country and attempts by certain forces to incite violence by declaring certain structures belonging to one community as their own”. On one hand, the PoW Act sought to soothe the anguish of the still smouldering Muslim community by forestalling the repetition of the Babri-similar claims and consequences, while on the other, the exclusion of Babri masjid embedded in the act did not disappoint the majority community either.
On the 6th day of December 1992, despite the writs of the Apex Court and assurances of the Central and State executives, Babri Masjid was demolished in broad daylight. In the aftermath of this brazen breach of trust, the nation witnessed a series of communal pogroms tearing apart the secular fabric of the republic. The State blatantly failed its citizens. It took 27 years for the country’s Apex Court to deliver the final verdict in 2019. The decision went in favour of the Hindu party. In the absence of conclusive archaeological evidence supporting the claim of the existence of a Hindu temple prior to the building that was razed on the 6th day of December 1991, the Apex Court relied on what it called ‘collective consciousness of the nation, a euphemism for popular demand or demand of the majority.
This judgment was a blow to the idea of secularism and raised the apprehension among the Muslim community that Supreme Court is not an impartial institution, and it will side with the majority community if the situation demands as explicit in its mentioning of ‘collective consciousness in the Babri verdict. On the other side, it has bolstered the majoritarian zeal and, in many ways, legitimized the anti-secular current that has been trying to make its way for a long time. The constitutional assurances of protection to the minorities seem to have faded. Hate has surpassed everything. Hate peddlers today might have in their mind an affinity with the lineage that touches upon the final verdict of the Supreme Court in the Babri Masjid case wherein the side committing an egregious violation of the rule of law enabled by hate propelled anti-muslim movement and concomitant pogroms of Muslim throughout the nation, won. This verdict was an ideal case of rewarding the perpetrator and institutional discrimination against minorities.
One more thing that became rampant after the Ayodhya judgment is that the petitions regarding the re-enactment of temples at the sight of mosques surged while the Places of Worship (PoW) Act, whose prime objective was to stop the furtherance of such claims made by any group, was there on the statute book. The expression ‘religious character’ being left undefined has served as leeway for successive petitions on similar claims. One such claim is regarding the “Gyanvapi Masjid” situated in Varanasi. Recently, in response to the request of a group of women petitioners seeking permission to pray on the premises of the Gyanvapi mosque, Varanasi civil court ordered a survey of the mosque to ascertain its ‘true’ religious character.
The order appears to be in contravention of the PoW Act. Ideally, such petition seeking permission to pray in a mosque by non-Muslims should be dismissed forthwith because of the religious character of the place where petitioners are seeking permission to pray as Hindus were of a mosque. But the local Court did not only entertain the petition but went beyond its jurisdiction and took upon the unsolicited task of deciding the religious character of a mosque.
All this while, it is not very surprising to see superior courts sitting with their finger on their lips but for the sake of democracy, let’s not be acquiesced to the judicial inactiveness and act as if surprised. This palpable immobility of the Apex Court creates an impression in the minds of Muslims that in some way or the other, the judicial balance tilts in favour of the majority.
The recent incidents of targeted bulldozing of houses and shops belonging to the dissenters and critiques of the ruling party in Uttar Pradesh and the complete oblivion of the Apex court have further cemented the impression that Judiciary has lost its credentials.
It is often argued that the wrongs in history are being set right by reinstating the mosques back into temples. Although the Babri Verdict had several shortcomings, it had some constructive elements, including an answer to the above excuse. The Supreme Court mentioned the cruciality of the PoW Act and emphasized its need and importance in order to maintain the secular character of this country.
The Court opined, “The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution and it preserves non-retrogression as an essential feature of our secular values”.
The Supreme Court also advised other courts not to entertain claims that stem from the actions of the Mughal ruler against Hindu places of worship in a court of law today and stressed the point that historical wrongs can’t be remedied by people taking the law into their hand and can’t be used as an instrument to oppress the present and future. But all this opinion of the Supreme Court is obiter dictum, which is not legally binding.
It is high time that the Supreme Court must come forward to save its turf. It ought to win back the trust, especially of the Muslim minority, and one concrete step that it must take immediately is to bring the objective of the PoW Act, which states that the religious character of a place of worship shall continue to be the same as it existed on the 15th day of August 1947 within the ambit of the basic structure of Indian Constitution. Simultaneously, also clear the confusion surrounding the expression ‘religious character’, its context and its meaning. It will serve as furtherance of secular values embedded in the Indian Constitution.
The concept of secularism which has been held as basic to the Constitution is impregnated with multifarious rights and limitations. The right to freedom of the exercise of one’s beliefs at places of one’s own choice cannot be divulged from the concept of secularism. Consequently, the places held to be religiously significant ought to be protected in order to enable the full exercise of religious rights.
The State, and that includes the Judiciary, must remind itself of the solemn duties that the Constitution places on their shoulders. The Judiciary, with the Supreme Court at the helm, is the guardian of the rights. It is the time that the Court needs to wake up and see why its ward’s having sleepless nights. The guardian ought to guard and guard like sentinels on qui vibe.
Nayab Gauhar is a Law undergraduate at Aligarh Muslim University and Md Saquib Madani is a postgraduate of Law, at Aligarh Muslim University.