Law on places of worship in India comes under scrutiny

Hindu groups asserting ownership over two key mosques in Uttar Pradesh in court cases

A 1991 law, which freezes the status and character of places of worship in India as at the time of independence in 1947, has come under increasing scrutiny, with Hindu groups asserting their ownership over two important mosques in Uttar Pradesh state in court cases.

One is the Gyanvapi Mosque in Varanasi, which is built on the ruins of a 16th-century Hindu shrine. The temple was partially destroyed in 1669 on the orders of Mughal emperor Aurangzeb, who then had the mosque built on the site.

The other is Mathura's Shahi Eidgah Mosque, built in 1670 also on the orders of Aurangzeb, and which is adjacent to the Krishna Janmasthan Temple Complex - where Lord Krishna is believed to have been born - and on land where it is claimed a temple once stood.

It is with the aim of putting a lid on such disputes that the Indian government, which was then led by the Congress party, enacted the Places of Worship Act in September 1991. It bars the conversion of a place of worship of any religious denomination into one for another denomination.

The Act prohibits judicial attempts to change it.

It was passed at a time of widespread bloody Hindu-Muslim violence in India that preceded the demolition of the Babri Mosque in Ayodhya in December 1992.

Professor Faizan Mustafa, a constitutional law expert, said the law was passed with the "noble intention of bringing closure to religious disputes". "We can't keep going back into the past and looking at what was the original character of this place and... that place because there is no end to it," he said.

"One has to see that our history is bloodstained and there was no rule of law at that point of time. Whatever the monarchs or the invaders thought fit, they did it. But today we live in a rule-of-law society and what was done by the likes of Aurangzeb cannot be repeated."

Ongoing Hindu claims over the mosques in Varanasi and Mathura have been contested with the argument that these claims violate the provisions of the law.

But as these cases progress, there have been growing calls for the government to reassess the law. This has prompted fears of renewed communal strife in India.

"If the 1991 Act goes, then of course, the floodgates will open," said Prof Mustafa, referring to many other disputes over places of worship in India, including those centred on Hindu temples that were built on the ruins of Buddhist shrines.

In 2019, the Supreme Court handed over the disputed Babri Mosque site to Hindu litigants, who had argued that it is the birthplace of the Hindu deity Lord Ram.

But the five-judge bench described the 1991 Act as one that protects India's secular principles and said "non-retrogression is a foundational feature of the fundamental constitutional principles".

"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," the bench had added in its judgment.

But lawyer Ashwini Kumar Upadhyay, a leader of the ruling Bharatiya Janata Party, last year challenged the validity of the Places of Worship Act in the Supreme Court, arguing that "a temple doesn't cease being a temple just because its roof and walls are demolished".

"The mosque constructed at temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity's property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property," he said.

The petition is still pending in the Supreme Court.

Mr Upadhyay does not believe repealing the Act risks opening the floodgates for religious disputes or threatens India's social fabric, and argues that not doing so instead allows the "illegal barbarian act of invaders" to "continue in perpetuity".

"No, historical wrongs must be corrected," he said.

Professor Rameshwar P. Bahuguna, a historian from Jamia Millia University in Delhi, noted that there was a dangerous trend emerging around attempts to undermine the Places of Worship Act.

"We have to unearth the past and try to understand it to the best of our abilities to find out how those societies were different from us," he said.

"There is no point in back projecting modern issues and ideologies on the past. The past is not there as a mirror image of the present. We read history to understand past society. We don't study history to take revenge," he said.

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A version of this article appeared in the print edition of The Straits Times on May 28, 2022, with the headline Law on places of worship in India comes under scrutiny. Subscribe