SC’s Pandora’s Box: Mandir, Masjid & Places of Worship Act

The Supreme Court must close the Pandora’s Box that it has opened as speedily as the Sambhal court heard the petition and ordered the survey. The Supreme Court must close the Pandora’s Box that it has opened as speedily as the Sambhal court heard the petition and ordered the survey. On November 25, 2024, the Supreme Court of India upheld the inclusion of the words ‘socialist’ and ‘secular’ in the Preamble of the Constitution.

The court, while dismissing a batch of petitions in its seven-page Order, observed, “In 1949, the term ‘secular’ was considered imprecise, as some scholars and jurists had interpreted it as being opposed to religion.

“Over time, India has developed its own interpretation of secularism, wherein the State neither supports any religion nor penalises the profession and practice of any faith. This principle is enshrined in Articles 14, 15 and 16 of the Constitution…”

On the very same day, approximately about 160 km away from the Supreme Court in Delhi, violence erupted between local Muslim residents and the police in the Sambhal district of Uttar Pradesh, leaving four people— Naeem Ghazi, Bilal Ansari, Mohammad Ayan and Mohammad Kaif— dead.

The violent clash was triggered by the fears of a mosque being demolished after a lower court ordered a survey of the religious structure in order to establish whether a Hindu temple existed there some 500 years ago.

The violent clash was triggered by the fears of a mosque being demolished after a lower court ordered a survey of the religious structure in order to establish whether a Hindu temple existed there some 500 years ago.

Both these events took place exactly one day before November 26, 2024— the 75th anniversary of the Indian Constitution. These contrasting events— one a judicial affirmation of constitutional principles, the other a violent manifestation of communal discord— paint a complex portrait of contemporary India.

While different sides will have different accounts of what transpired and who is to blame, it is important to understand how places of worship and harmony have become places of clash and dissonance in today’s India.

Law against ancient grudges?

In order to avoid disputes over religious places and one year after violence over the Babri Masjid at the height of the Ram Mandir movement, the Parliament in 1991 enacted the Places of Worship (Special Provisions) Act, a landmark legislation designed to freeze the religious character of places of worship as they existed on August 15, 1947.

The Act explicitly prohibits the conversion of any place of worship to a different religious denomination, effectively seeking to prevent future communal disputes over religious sites.

Introducing the Act, the then Union home minister S.B. Chavan had articulated its fundamental purpose: to halt the recurring communal tensions sparked by religious site disputes. The legislation was explicitly designed “not to create new disputes and to rake up old controversies which had long been forgotten by the people,” but to preserve social harmony.

Parliament’s rationale was clear: these “controversies arising from time to time with regard to the conversion of places of worship” consistently threatened to “vitiate the communal atmosphere” in the country. The Act represented a legislative attempt to draw a line under historical religious conflicts, preventing their continuous reactivation in contemporary political and social discourse.

The Act left the Babri Masjid–Ram Janambhoomi dispute outside its purview. Yet, the importance of the Act can be gauged from the fact that the landmark 2019 Ayodhya judgment reaffirmed the constitutional significance of the Places of Worship Act.

As per the Bench, the Act was a critical “legislative instrument designed to protect the secular features of the Indian polity”, a fundamental constitutional principle. The court delivered a powerful rebuke to historical revisionism, asserting that legal recourse cannot be sought for historical wrongs committed by past rulers.

“Our history is replete with actions that have been judged to be morally incorrect,” the judgment noted, emphasising that contemporary legal mechanisms should not become instruments for settling ancient disputes.

By upholding the Act, the court highlighted a crucial constitutional principle: the law must prevent the reopening of historical wounds and protect the secular fabric that binds India’s diverse social and religious tapestry. The Act, in the court’s view, was not just legislation, but a bulwark against communal retrogression.

While different sides will have different accounts of what transpired and who is to blame, it is important to understand how places of worship and harmony have become places of clash and dissonance in today’s India.

Blooming of the wrong precedent

The tragic incident that took place in Sambhal was triggered by a court-ordered survey. In an extraordinary departure from India’s typically sluggish judicial system, the court had moved with remarkable speed in the case.

Within hours of the petition being filed, an advocate commissioner was appointed and directed to survey the mosque— all without hearing the other side. The civil judge also ordered for a report to be filed by November 29.

But perhaps it would be wrong to question the legal mannerism of the events, as the lower court was merely walking in the footsteps of the Supreme Court. While communal clashes have never been ‘foreign’ to the Indian sub-continent, this time the case is different; it is the Supreme Court that has, post the Ayodhya verdict, opened a Pandora’s box of such cases.

On a plain reading, the Places of Worship Act tells us that the religious character of a place is not to be disturbed and such property disputes are beyond the purview of the usual civil proceedings as they are an exception.

Basically, when it comes to a place of worship, a civil suit gets barred under the Act. However, the Supreme Court undermined the fundamental logic of the Act and its own previous judgments.

Despite pending petitions challenging the Places of Worship Act, the court has allowed for ‘non-invasive’ surveys to take place in Gyanvapi in Kashi and Idgah in Mathura, where the case trajectories are similar to Ayodhya.

Both the Gyanvapi Mosque and the earlier batch of cases have faced challenges from mosque committees citing the Places of Worship Act, 1991. However, courts have consistently ruled against these objections, allowing the suits to proceed.

In the Gyanvapi case, the court has clarified that the suit seeks to assert the right to worship Hindu deities, not to ‘convert’ the mosque. Similarly, in the earlier cases, the Allahabad High Court has interpreted the Act to not define the term “religious character”.

In the Gyanvapi case, the court has clarified that the suit seeks to assert the right to worship Hindu deities, not to ‘convert’ the mosque.

The court has reasoned that a structure cannot simultaneously be both Hindu and Muslim, and its true religious character can only be determined through evidence. Therefore, the Act does not completely bar proceedings to ascertain this character.

In September 2022, the Supreme Court led by former Chief Justice of India (CJI) U.U. Lalit directed the government to respond within two weeks, but the Union has yet to file its affidavit.

Last year, former CJI D.Y. Chandrachud made oral observations regarding the Gyanvapi Mosque case. He observed that the 1991 Act does not bar inquiries into the status of a place of worship on August 15, 1947, as long as there is no intention to alter or convert its nature. This interpretation differs from the stance taken in the Ayodhya judgment, also purportedly authored by Justice Chandrachud.

It appears that the lower courts have interpreted the Supreme Court’s observations to mean that such cases seeking to determine the original nature of a place of worship, even if it cannot be altered, are not barred by the 1991 Act.

The legislative intent of the Places of Worship Act could not have been any clearer— to let the religious structure retain its character as it was on the agreed date of independence.

The entire point of having the law in the first place is that it is arduous to conclusively decide upon the true character of some places of worship and the best thing that can be done is to let the places be as they are.

The purpose is to avoid future clashes in the name of contesting rightful claims of the past. The Act created a legal firebreak against the potential conflagration of communal violence and even provided for a date to be as clear as it could get.

Each attempt to definitively determine the ‘original’ status of a religious site risks reopening historical wounds, reigniting dormant communal tensions, and transforming academic or legal inquiries into sources of social conflict. Section 3 of the Act puts a bar on both inter- and intra-religious conversions as it reads, “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”

By creating a judicial mechanism to investigate centuries-old religious site claims, the court has invited the troubles of transforming historical ambiguities into contemporary conflict zones.

The language of the three-page legislation with only seven provisions cannot get any clearer, simpler and more definitive. The preamble of the Act is as straightforward and unambiguous as a preamble can get, stating, “An Act 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.”

By creating a judicial mechanism to investigate centuries-old religious site claims, the court has invited the troubles of transforming historical ambiguities into contemporary conflict zones.

What appears to be a neutral legal process has in modern-day India turned into a tool for one side with a particular ideology to potentially weaponise historical interpretations, threatening the very secular principles the Constitution seeks to protect.

The Supreme Court must close the Pandora’s Box that it has opened as speedily as the Sambhal court heard the petition and ordered the survey.

Courtesy: Newsclick

Note: This news is originally published in newsclick.in and is used completely for non-profit/non-commercial purposes especially for human rights.