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Problematic deliberation

Petition bought before SC with the aim of declaring ‘Places Of Worship Act’ as unconstitutional, is detrimental to India’s harmony and secular fabric; write SM Khan & Shahryar Khan

In 1991, when the tensions over the Babri Masjid 'Ram Janmabhoomi' were looming large, many radical organisations laid claim on a number of mosques in the country claiming the mosques were built by the Mughals only after demolishing temples. Therefore, to maintain communal harmony and secular fabric of the country the Congress-led Narsimarao Government enacted the 'Places of Worship Act' (PWA) on September 18, 1991, for freezing the status of places of worship as they existed on August 15, 1947. The act was passed one year prior to the demolition of the Babri Masjid. Even though the provisions of the Act did not apply to the 'Ram Janmabhoomi'- Babri Masjid dispute, it was still seen as an instrument of negotiating the dispute by building confidence in the Muslim community. The Act was a reassurance to the Muslim community that if they accept the claims of the Hindu organisations on the disputed site, then other mosques in the country would be protected and the status of the mosques throughout the country would remain the same.

The 1991 law is a legislative instrument intended to preserve the secular fabric of Indian polity, which is one of the basic features of the constitution. The Act is seen as an instrument to prohibit conversion of any place of worship and to ensure that no person shall convert any place of any religious denomination into one of a different denomination and to provide for the maintenance of the religious character of any place of worship as it existed on August 15, 1947. The places of worship under the Act are not limited to mosques but includes places of worship of all faiths. The Act mandates that all suits, appeals and any other proceedings with respect to converting the character of a place of worship, which are pending before any court or authority on August 15, 1947, will abate as soon as the law comes into force. The Act has carved out certain exceptions to which the provisions of the present Act do not apply. The provisions do not apply to ancient and historical monuments, archaeological sites and remains that are covered by the 'Ancient Monuments and Archaeological Sites and Remains Act', 1958; a suit or legal proceeding which has been finally decided settled or disposed of; any dispute which has been settled by the parties before the commencement of the act; a conversion of any place that took place by acquiescence before the Act commenced; any conversion of a place of worship before the commencement of the Act in respect of which the cause of action would be barred by limitation. This law is a special enactment and prevails over any other law in force.

The 1991 Act has always been under the scrutiny of various radical organisations and has now come into discussion as the Vishwa Bhadra Pujari Purohit Mahasangh by way of a Public Interest Litigation has recently moved the Hon'ble Supreme Court of India seeking directions from the top court to declare Section 4 of the Act as 'ultra vires', i.e., beyond legal power or unconstitutional. It has been contended by this organisation that Section 4 of the PWA is against the secular fabric of the country and validates the barbarous action of the Mughal invaders by restricting the Hindus to reclaim possession of these places of worship which had been forcefully converted by the invaders. The Jamiat Ulema-e-Hind which was a party in the 'Ram Janmabhoomi' dispute case has moved the Supreme Court in an attempt to oppose the petition filed against PWA.

The five-judge bench in the 'Ram Janmabhoomi' dispute had dealt with the Act quite extensively. The Hon'ble Court had laid down that PWA is a legislative instrument designed to safeguard the secular features of the country, which is one of the basic features of the Constitution. It was further stated by the Hon'ble Supreme Court in the landmark decision that the Act was enacted to fulfil two purposes. First, to prohibit the conversion of any place of worship. In doing so it speaks to the future by mandating that the character of a public worship shall not be altered. Secondly, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed at the time when India became an independent nation.

Even though this organisation has taken a legal recourse of filing a writ petition challenging the validity of the act before the Hon'ble Supreme Court, it would be judicious and highly appreciable by the people at large if the Supreme Court does not entertain such a frivolous and tendentious petition as the 'Places Of Worship Act' is intrinsically related to the obligations of a secular state and holds large scale implications. If the petition is admitted and notice is issued then the same would again lead to a long courtroom drama and vitiate the harmonious atmosphere prevailing in the society at present. The same would also give false hope to the radical organisations to reclaim the disputed religious sites and create fears in the mind of the Muslim community with regard to their places of worship, which will ultimately have an effect on the secular fabric of the nation.

SM Khan is the Former Dean/ Director Hamdard Institute of Legal Studies and Research, Jamia Hamdard and Vice President India Islamic Cultural Centre, New Delhi. Shahryar Khan is an advocate, Delhi High Court.

Views expressed are personal

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