It was the last decade of the 20th century and communal tensions were at their peak all over the country. The apple of discord was the mosque situated in the holy city of Ayodhya, the conflict between the two largest religious communities of the country had seemingly reached the “no-return” point. The thinking among the rulers was that it was too late in the day to try to stop the ongoing tug of war tarnishing the age-old reputation of India as a multi-religious, spiritual and highly tolerant nation. But there were reasonable apprehensions that the fire might engulf many other old mosques across the country. They, therefore, decided to enact a law that could apply brakes to all such aspirations and plans. Picking a suitable title for the proposed law was a hard nut to crack. The thought process about it got unduly prolonged, but it was soon realised that time was running out. The proposed law was eventually passed in September 1991 under the cryptic title Places of Worship (Special Provisions) Act. The idea of keeping its title vague might have been taken from a law enacted three years earlier by the equally ambiguous title of Religious Places (Prevention of Misuse) Act, 1988.
The preamble of the new law described itself as 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 it was to be “deemed to have come into force” retrospectively on July 11, 1991. The operative provision of the Act read as, “it is hereby declared that the religious character of a place of worship existing on the 15th day of August 1947 shall continue to be the same, as it existed on that day” (section 4). Before declaring this, a ban was imposed on efforts to create an Ayodhya-like situation elsewhere. Section 3 of the Act said, “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.”
And if somebody dared to defy the statutory ban and did what it prohibited, there would be a penalty — imprisonment for a term which may extend to three years, and also, a fine (amount not specified). The continuing Ayodhya tussle was, of course, exempted from the application of the entire Act by a conspicuous assertion “Nothing contained in this Act shall apply to the place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh.”
Nearly a year later, emboldened by the exclusion of the disputed shrine of Ayodhya from the purview of the newly adopted law, a huge army of devotees was to march to the holy city to perform the traditional kar seva around the place that was by now officially described not as a mosque or temple but as the vivadit dhancha (disputed structure). Alarmed by a highly probable chance of the move resulting in dastardly consequences, a Public Interest Litigation (PIL) was filed in the Supreme Court seeking an order to stop the obviously risky move. But the court was in a quandary. As the newly enacted law of 1991 was totally inapplicable to the case, it had to be explored under which existing law such a direction could be issued. The writing on the wall was clear, but the court naively accepted the solemn assurance given by the state government that kar seva was a peaceful religious practice that could do no harm to the mosque. It was a rare instance of judicial overconfidence, though not warranted by the circumstances. What happened in the coming days is well-known history.
When the Ayodhya case was finally decided by a Constitution bench of the apex court in November 2019, the bulky judgment included, inter alia, a reference to and detailed analysis of the Places of Worship (Special Provisions) Act that had been put on the statute book nearly three decades earlier. The court cited at length parliamentary debates on the Bill that had led to the passing of the Act and noted, seemingly with appreciation, official observations on the objects and purposes of the law in the making.
Within a few months after this judgment was delivered, a learned lawyer, who indeed deserves a place in the Guinness Book of Records for rushing to the apex court on every debatable social issue, challenged the constitutional validity of the 1991 Act. The plea was admitted, and notice was issued to the government as per procedure to seek their response. The rulers of the day, however, adopted the proverbial “silence is gold” policy. In the years to come, new petitions and intervention applications kept pouring in the court, but there was hardly any progress in the case. Violators of the Act were having a field day all around but the shebait of the temple of justice preferred to wait and watch.
At last, came a gentle and soothing breeze to cool the warm air. Stop the madness going on all around, a three-judge bench of the apex court headed by a new Chief Justice has, in effect, warned the people. “As the matter is sub-judice before us, we deem it appropriate to direct that, though fresh suits may be filed, no suits would be registered, and no proceedings shall be undertaken therein till further orders of this court” — assertively said the court’s interim order of December 12. Indicating deep concern, the court has further directed that “in the pending suits no court will pass any effective interim orders or final orders including orders directing surveys, etc. till the next date of hearing/further orders of this court.” The next hearing will be on February 17, 2025.
For at least a couple of months, the society will expectedly remain peaceful. There are people here and there who have shown that they could care least even for the apex court directives, but the lower courts will have no choice but to strictly abide by the discipline of the established judicial hierarchy.
The apex court’s concern and wisdom deserve the deepest appreciation. But it is for us, citizens of this great country, to understand that the archaeological heritage of the nation — good or bad, unpleasant or cruel, in whatever way it may be seen — cannot be wiped out by using modern technology and digging out the soil wherever so one desires.
Tahir Mahmood is professor of law and former member of the Law Commission of India.The views expressed are personal
