A Pandora’s box that the Supreme Court has opened

And yet, here we are.

A judicial panel in Uttar Pradesh will now investigate how four people died as clashes broke out between police and protesters after a trial court allowed a survey of a mosque in Sambhal. In Rajasthan, a local court has issued notices to several authorities after admitting a petition arguing that the much-revered Ajmer Dargah of Khwaja Moinuddin Chishti was once a Shiva temple. The petitioner has asked for a physical survey of the dargah.

Where will this end? Is the Places of Worship Act now effectively redundant? Is it a law that exists on paper without any actual applicability? And is the Supreme Court responsible for this entirely mixed messaging to the lower courts?

First, what is this law that is at the heart of today’s politico-religious debate? In September 1991, when PV Narasimha Rao was Prime Minister (PM), a law was enacted by Parliament to “provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947”.

The exemption, also detailed specifically within the law itself, was Ayodhya. “Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janmabhoomi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship,” it read. When the five-judge bench of the Supreme Court announced the Ayodhya judgment (two former Chief Justices were on the bench — Justice Ranjan Gogoi and Justice Dhananjaya Y Chandrachud), the verdict invoked this particular legislation to underline that the purpose of the Act was to protect and secure “the fundamental values of the Constitution”.

What is critical is that the Supreme Court bench placed the Places of Worship Act and the values it protected within the basic structure of the Constitution. This is not just an academic or esoteric detail. It matters because, in the Kesavananda Bharati judgment, the Supreme Court held that Parliament was free to enact/amend any law, with the caveat that the basic structure of the Constitution remains inalterable.

Here’s what the Ayodhya verdict, widely hailed across party affiliations, said about the Act: “The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is, hence, a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.”

But, in August 2023, one of the authors of the Ayodhya verdict, Justice Dhananjaya Y Chandrachud, allowed the survey of the Gyanvapi mosque to determine if the 17th century structure was built on a pre-existing temple and declined to put any stay of the High Court order that had permitted the survey. Justice Chandrachud refused the argument that the decision was a violation of the Places of Worship Act, saying in court that this was an “interlocutory order passed during the examination of the suit. We will protect the structure … we will safeguard your interests.”

Now, I am not getting into the merits or demerits of the historical and religious debate over Gyanvapi. Scholars like Faizan Mustafa have called Gyanvapi a weaker case than Ayodhya for the Muslim community. He has, in the past, urged Muslim community leaders to make space for Hindu devotees to offer silent players at the same complex. He has pointed out the limitations of turning to the judiciary over every dispute.

But these have to be inter-community dialogues led by religious leaders and members of civil society.

The danger right now is a slew of copycat petitions across India in local courts pushing for a redetermination of the nature of a particular place of worship. In the case of a petition by the Sambhal Mosque committee, the Supreme Court, led by Chief Justice Sanjeev Khanna, has restrained the trial court from taking any action and asked the petitioners to approach the high court against the local court’s order allowing the survey. It has also directed the commissioners’ report of the survey to be kept confidential.

However, a Pandora’s box may have already been opened by the Supreme Court earlier. And now, putting the lid back may prove tougher than believed.

Barkha Dutt is an award-winning journalist and author. The views expressed are personal

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