Is the Places of Worship Act quite dead yet?

Nobody was amused when RSS chief Mohan Bhagwat said, in December 2023, that Hindus have been at war for the last thousand years. Muslims, he went on to say, had nothing to fear, but they must stop behaving as if they still ruled over India. He couldn’t have meant the Muslims who are being hounded out of their homes and businesses. Who and where, then, are these Muslims Bhagwat was talking about? Or was this code for: ‘learn to live as second-class citizens’, ‘learn to be in your place or else’?

On 29 November 2024, two days after a local court ordered the ‘survey’ of Ajmer Sharif in Rajasthan, former lieutenant governor of Delhi, Najeeb Jung and former Chief Election Commissioner S.Y. Quraishi joined 15 other civil servants, both Hindu and Muslim, in writing an open letter to the prime minister, urging action against ‘an ideological assault on this uniquely syncretic site’.

While admitting that inter-communal relations have not always been good, the letter went on to say that ‘the incidents of the last 10 years are markedly different in as much as they show the clearly partisan role of many of the state governments concerned and their administrative machinery. This, we believe, is unprecedented.’

As if the recent boycotts of Muslim business establishments and eateries, the refusals to rent to Muslims and the rampant bulldozing of Muslim homes wasn’t bad enough, ‘the latest provocation is of unknown fringe groups, claiming to represent Hindu interests, demanding archaeological surveys on medieval mosques and dargahs to prove the existence of ancient Hindu temples on the sites where these have been built.’

The prime minister, the signatories affirmed, is the only one who could halt these ‘illegal, pernicious activities’. A misplaced hope?

In an interview with the Satya Hindi channel, Jung explained that the letter was a desperate reaction to the failure of the government, the police and the courts to enforce the Places of Worship (Special Provisions) Act, 1991, which sought to freeze the character of places of worship as they existed on 15 August 1947, in order to ensure peace, prosperity and harmony in India.

In another of his characteristically elliptical speeches, Bhagwat had spoken of the futility of looking for a Shivling in every mosque. That has not deterred the Hindutva brigade from stepping up their campaign of petitioning courts to permit surveys of mosques in Kashi, Mathura, Sambhal, Budaun in Uttar Pradesh and, in the latest case, Sufi saint Moinuddin Chishti’s dargah in Ajmer, Rajasthan.

The Hindu Sena, the group behind the demand for the Ajmer Sharif ‘survey’, has also declared its intention to move for a ‘thorough survey’ of the Jama Masjid in Delhi, claiming Hindu idols are buried there too.

In Uttarkashi, fringe groups were allowed to take out processions and dispute a relatively new mosque built on private property, because it did not ‘look like a mosque’. It had no domes, they argued, and disputed the mutation of the land. Despite the Uttarakhand High Court being told by the state government that a mahapanchayat to contest the legality of the structure would not be allowed, permission was granted at the last minute, with ‘conditions’ attached. Obviously, the court will be informed that the conditions were fulfilled and no hate speech was delivered.

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Most of the recent petitions for surveys by the Archaeological Survey of India (ASI) are based on the plea that artefacts are being taken out of the monuments and historic signs painted over. Petitioners also seek access to the monuments under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The ASI in turn informs the courts that it is not aware of what goes on since it is prevented from inspecting the sites.

This has been disputed by the Masjid Committee of Sambhal’s Shahi Jama Masjid. ASI inspections, they say, have been rare — once in 1998 and then in June 2024. In 2018, the ASI officials did not have written permission from the district magistrate and were turned away.

Responding to the ASI’s allegation that modifications have been made, railings built, air conditioners installed and floors re-laid, Zafar Ali of Sambhal’s Masjid Committee retorts, “When there is no protection from the ASI, what are we supposed to do? When the soil subsides, walls begin to crumble and roofs develop cracks, should we wait for a mishap to happen first? These are centuries-old structures after all.”

Asaduddin Owaisi, MP from Hyderabad, went on record to say that if prayer was the point of access, nothing stops petitioners from entering the mosque. But if, as the Act determines, the nature of a place of worship can’t be changed, why order the survey at all?

For the Hindutva hordes leading the present charge to petition courts for ‘surveys’ of Muslim monuments, the previous Chief Justice of India D.Y. Chandrachud must be a hero. For the rest, he is guilty of undermining the stature and authority of the Supreme Court, the Places of Worship Act, and even the Ayodhya judgment of 2019, which he was not only party to but has suggested he authored with ‘divine intervention’.

The Ayodhya judgment of 2019 devoted 10 pages to the Places of Worship Act: ‘Historical wrongs cannot be remedied by the people taking law in their own hands… in preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.’

In August 2023, Chandrachud went against the Ayodhya judgment by allowing the controversial ‘scientific survey’ of the Gyanvapi mosque, which opened the floodgates for the deluge of survey petitions we see now.

“What is frivolous to you is faith for the other side,” he told Huzefa Ahmadi, counsel for the Gyanvapi mosque. The petitioners did not seek to alter or convert the nature of the site, simply to ascertain the character of the place, he said at another hearing in October 2023.

Senior lawyer Dushyant Dave, in an interview to Karan Thapar for the Wire, pointed out that Section 4 of the Act clearly states that no suit, appeal or petition related to the character of any places of worship would be entertained by any court of law. The Ayodhya judgment, Dave underscores, dismissed the earlier ruling of the Allahabad High Court holding that the Places of Worship Act did not prohibit anyone from disputing the character of other places of worship. Justice Chandrachud held the high court’s ruling erroneous and accordingly quashed it, ruling that the character would be decided by the Supreme Court.

In 1991, the Parliament made an exception to the Act in the case of the Ram Janmabhoomi dispute, which was already before the courts.

With the Act freezing all disputes about religious places with the exception of Ram Janmabhoomi, what was the point in allowing the ascertainment of the character of a place of worship as it stood in 1947, asked an anguished Dave. Wasn’t it obvious that the mosques have been mosques for centuries? Does the Supreme Court not see the danger of allowing dubious academic exercises with inflammatory consequences?

By allowing such surveys, the courts are guilty of contempt of court. But when the Supreme Court itself defies the law and its own judgment, what might the remedy be? Dave was emphatic in hoping that the current Chief Justice of India Sanjiv Khanna would take positive action towards undoing the damage, by directing that all similar disputes be referred to the Supreme Court and ruling that no such petition shall be entertained henceforth by any court in the country.

Dave and others believe that unless the Frankenstein unleashed by Chandrachud is restrained, a prolonged period of strife awaits India. What if Buddhists demand surveys to ascertain the character of ancient Hindu temples, which they believe were built over Buddhist stupas and viharas?

Editor and commentator Harish Khare identifies what lies ahead with chilling clarity.

‘The RSS has built a vast ecosystem of respectability. This includes eminent personalities — retired Supreme Court judges, generals, bureaucrats, IPS and IFS officers, middle-class professionals, and even housewives and grandmothers — singing the tune of a “Hindu renaissance” scripted in Nagpur… Perhaps it is time now for the RSS to rewrite its own playbook of tricks and slogans for the next century. The uncles in Nagpur must decide whether they want to instigate India, old or new, into a hundred-year-long simmering civil war.’