Places of Worship Act: How SC undid what then CJI Chandrachud allowed two years ago

This same question was also before the Supreme Court on May 21, 2022, when, in an oral observation, it held that a survey didn’t violate the Act and, effectively, set the stage for civil suits in over 10 cases – from Varanasi and Mathura to Sambhal and Ajmer.

“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?,” observed a three-judge bench led by then CJI DY Chandrachud hearing an appeal against the Varanasi district court ordering a survey of the Gyanvapi mosque.

The bench had observed: “Therefore, this hybrid character, forget this arena of contestation, is not unknown in India. What does the Act therefore recognise? That the presence of a cross will not make an article of Christian faith into an article of Zoroastrian faith, nor does the presence of an article of Zoroastrian faith make it an article of Christian faith.”

“But 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)… These are matters which we will not hazard an opinion in our order at all,” the bench had observed.

Although a larger challenge to the Places of Worship Act had been pending, just four months after these observations were made by the SC, the district court in Varanasi effectively relied on it to allow the civil suit by Hindu plaintiffs seeking access to the Gyanvapi mosque.

“The determination of religious character is a matter of evidence which can be laid by either of the parties,” the district court had said in its order.

Section 4(2) of the 1991 Act states that “no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.”

Senior advocate Huzefa Ahmedi, appearing for the Committee of Management of Anjuman Intezamia Masjid, Varanasi, had argued in court that ordering a survey “is precisely an extension of what was sought to be prohibited by Parliament.”

The SC’s 2022 observations were also in conflict with the ruling of the 5-judge bench in the Ayodhya Ram Janmabhoomi verdict where the SC termed the 1991 Act “a basic structure of the Constitution.”

“In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, 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 law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic structure of the Constitution,” the court had said.

On Thursday, one of the three judges on the bench, Justice KV Viswanathan, referring to the Ayodhya judgement observed that “civil courts cannot run a race with the Supreme Court,” when a Constitution bench had set out “certain principles.”