Opinion Chander Uday Singh writes: Why revanchist claims to places of worship are legally untenable

The 1991 Act, explained the justices, “secures the fundamental values of the Constitution… it emphasises human dignity and fraternity”, and it provides “a guarantee for the preservation of the religious character of places of public worship as they existed on 15-8-1947”. Para 102, in ringing terms, holds that this Act “imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution”, and that this is intended to protect the basic features of the Constitution.

What is one to make then of the spate of suits being filed across the country, court orders directing entry into ancient mosques, videography by court commissioners, searches for religious artefacts or symbolism, and claims for the right of one denomination to worship in the place of worship of another? More importantly, what does one make of the timorousness of constitutional courts when faced with such claims, or their propensity to allow such issues to fester? And what of the throwaway comments or remarks during hearings, which to the media and general public might suggest new avenues to use history and its wrongs to oppress the present and the future? And lastly, does the exclusion of ancient monuments and archaeological sites from the purview of Section 4 of the Places of Worship Act, 1991, make a material difference to these suits?

The first question is easily answered, and not only because of The Places of Worship Act. Insofar as the Act is concerned, the Bench in M. Siddiq (supra) expressly quashed the findings of the Allahabad High Court to the effect that certain types of disputes could be kept alive, or subsequently raised. The five justices elevated non-retrogression to a basic feature of the Constitution. These findings were rendered after noting that many ancient places of worship were built upon the ruins of others, and sometimes even after destroying those that stood before, and that consequently religious artefacts, pillars, stones, carvings, and even idols might have been subsumed within the later place of worship.

Apart from the 1991 Act, it appears from the nature of these suits that they are barred by limitation and are untenable. Judging by press reports, the claims in these suits are based not on title, ownership and continuous possession, but on the right to worship at particular sites. The foundation of these claims is a belief that a sacred temple was destroyed centuries ago, and a mosque was built on the ruins, perhaps using the pillars, stones and carvings of the old temple. Such claims, as held by the Bench in M. Siddiq, are clearly time-barred under the Limitation Act, 1963. Briefly, the justices held that the Limitation Acts of 1908 and 1963 apply even to claims on behalf of a deity or idol. They held that claims of dispossession of property by a religious denomination were barred after 12 years and that claims based on the management of temples or the right to worship were barred after six years.

My second question is clearly rhetorical, and the reader can fill in the answers.

As for the third, it must be said that queries and open-ended discussions during court hearings are par for the course. But when issues as fraught as this one are met with the Supreme Court musing on the possibility of discoveries by a court commissioner — and their significance — and hypothesising about a Parsi Agyari in which a Christian cross might be found, and the “hybrid” nature of such Agyari, some clarifications become necessary.

The Places of Worship Act, 1991, is concerned with one principal question: What was the religious character of a place of worship on August 15, 1947? The Act is not concerned with what existed before the construction of the place of worship, what materials were used to build it, or whether it stands upon religious symbols or icons or artefacts of any other religious denomination. All that matters is whether on the date when India gained Independence, it was a temple, a mosque, a gurudwara, a church, a monastery or any other place of worship. As rightly (and finally) held by the SC in Siddiq, the purpose of the Act is not to correct historical wrongs but to start with a clean slate at our Independence.

That brings me to the last question, on the Ancient Monuments Act, 1958. This Act applies to those ancient monuments and archaeological sites that were notified under The Ancient Monuments Preservation Act, 1904, or the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951, or those that are declared to be of national importance under the 1958 Act itself. The mosques that are the subject matter of most of these suits are not covered by the 1958 Act, so this is essentially a red herring. However, some other monuments like the Qutub Minar and Taj Mahal are certainly covered by the 1958 Act, but then most of these aren’t places of worship. Occasionally, there are places of worship within ancient monuments, and in such cases, section 16 of the 1958 Act grants them protection that is broadly on par with that which is available under The Places of Worship Act. In any case, this Act bars civil suits in respect of any matters falling within the purview of the National Monuments Authority, so it is unlikely that the 1958 Act will spring to the rescue of these revanchist actions.

The writer is a senior advocate