The decision by a Varanasi district court on Monday that a petition by five women to worship Hindu deities on the premises of the Gyanvapi Mosque could be heard by the courts was made despite the existence of the Places of Worship Law (Special Provisions) which expressly states each Forbidden changing the religious character of any place in independent India.
The law was passed in 1991, at the height of the Babri Masjid dispute, to prevent similar municipal scrambles over places of worship. However, the Varanasi Court held in its ruling that the law itself does not prevent women from pursuing their claims in court.
Given the charged political and community environment in which the dispute over the mosque complex is taking place, the Varanasi court’s order has sparked heated debate in legal circles. While some lawyers agree with the judge’s interpretation of the inapplicability of the Religious Sites Act at this early stage, other experts argue that the court should have considered the matter more broadly.
It is clear that such petitions are being used strategically for political ends and that by allowing them they will ultimately undermine the very purpose of the Places of Worship Act: to prevent disputes over religious structures.
Legally excluded
The Places of Worship (Special Provisions) Act, 1991, chose the date of India’s independence, 15 August 1947, when the religious character of a place of worship would be frozen. Any change in religious character thereafter would be illegal. In particular, Section 4(2) of the Act also prohibited “any action, appeal or other proceeding” in relation to the conversion of the religious character of a place of worship before “any court, tribunal or other authority”.
In the Gyanvapi case, the Mosque Management Committee invoked Section 4(2), among other statutes, to say that such a claim by the plaintiffs could even exist. Regulation 7 Rule 11 of the Code of Civil Procedure, 1908, governing the settlement of civil disputes, mentions that any case which is time-barred by law cannot be filed – that is, it is not upheld.
In response, the plaintiffs argued that their lawsuit was not barred under the 1991 law since they were not seeking to convert the mosque into a temple, only claiming a right to worship.
They also claimed that until 1993 they routinely prayed on the mosque’s grounds. Furthermore, they also argued that after the 2019 Ayodhya ruling, even if an idol is destroyed, its pious purpose and legal character persists. This means that there is no change in the religious character of a place and therefore no violation of the Places of Worship Act. The court accepted the plaintiff’s arguments.
Neat order
Some legal experts said Monday’s order was legally sound. “The judge discussed the full scope of Order 7 Rule 11 and then, on that basis, examined the sides’ claims to different laws,” said former Chief Justice of Allahabad Supreme Court Govind Mathur.
In the Gyanvapi case, the district judge said he would only consider the plaintiffs’ claims at this time, Mathur said. “This position is solid and based on the first principles of law,” he added. Mathur said the judge did not rule on the merits of the dispute, which will now be decided on the basis of evidence.
However, other experts believe that the regional court’s decision was wrong.
“If there is a law that says certain things must be stopped, its aims must be taken into account,” argued Delhi-based lawyer MR Shamshad.
He explained: “Namaz was continuously offered in the premises of Gyanvapi except in the basement area. Anything contrary to the uninterrupted activity of the mosque amounts to a change in the nature of the house of worship.”
Therefore, hearing a request for Hindu prayer on the premises of the mosque was against the law. He said: “This judgment is not, in my opinion, consistent with the objectives of the 1991 Act.”
According to the logic of Monday’s verdict, no lawsuit is ruled out. “The plaintiffs will all make pleadings and the courts will say I will proceed with it,” Shamshad said.
Look deeper
Several lawyers believe the courts should also have seen the evidence used to support the claims in the petition.
While Advocate Shamshad agreed that the rule of thumb in these cases was to look only at the plaintiff’s allegation, he believed the court should have looked deeper in this case. “Everything has a certain standard for measuring appearance value,” he said. “With that in mind, there is legislation to end these things and you already have pending litigation.”
Another senior Supreme Court attorney on record, Anas Tanwir, said that in these cases “you have to look at how a claim is established.” Otherwise, anyone can submit a case with a random set of facts.
The Varanasi District Court’s decision in the Gyanvapi Mosque case clearly violates the objective of the 1991 Houses of Worship Act.
Misinterpretations of the law by sections of the judiciary will lead to serious consequences that the law was intended to prevent pic.twitter.com/IoMZlo5iEm— Sitaram Yechury (@SitaramYechury) September 13, 2022
In addition, Shamshad pointed out that the Gyanvapi matter has been the subject of litigation since 1991 and, to his recollection, the dispute over Hindus praying in the mosque had never been raised before. Therefore, the courts should have examined the application.
“In this case, lawsuits are filed at each stage by improving their briefs,” Shamshad said.
In May, scroll.in had reported that at least 10 petitions related to Gyanvapi Mosque were pending in different courts. Lawyers from the Hindu side involved in the case had also said that these petitions are being submitted strategically to gain gradual relief from the courts.
In such cases at the intersection of law, politics and religion, the fact that the case is pending in court often simmers the conflict. “Things that could have been done at the political level are done through court cases,” Shamshad said.
“Clever elaboration”
Is a court required to consider only the plaintiff’s arguments when deciding maintainability?
There are cases where the Supreme Court has also said that the courts must examine petitions and not just rely on plaintiffs’ statements. The mosque committee had cited a 1977 Supreme Counsel case that said the court should make a “substantial reading” of the bill when deciding on maintainability. If “clever wording” creates a cause of action, then “the court must nip it in the bud in the first trial.” The Supreme Court had stated that an “activist judge was the answer to irresponsible lawsuits”. However, this was not accepted by the district court.
Mathur, who reviewed the preservation order filed by the mosque committee, believed the defendants could have presented a better case and asked the court to examine the prima facie evidence supporting his claim of having prayed at the site until 1993. “My goodness sense is that they are being advised more by constitutional and activist lawyers than by civilian lawyers,” he said.
He said the Supreme Court needed to “address that” and clarify the retainability law of these cases.
Appeals on various aspects of the Gyanvapi case are currently pending before the Allahabad High Court as well as the Supreme Court. In addition, the Supreme Court also deals with constitutional challenges to the Places of Worship Act.
