Belated, But Landmark Intervention Of The Supreme Court In The Places Of Worship Act, 1991 | Vijay Kumar

December 13, 2024

The Supreme Court’s order, passed on 12th December, barring the registration of any suit in any court of the country with the allegation that Mosque/Dargah was built by demolishing the Temple, and injuncting any court, including High Courts, from issuing direction to conduct survey is urgently-required intervention and deserves appreciation.

This highly desirable order will, hopefully, pause what Justice Rohinton F. Nariman graphically described “the popping up of hydra-headed suit” in many parts of the country, especially in Uttar Pradesh and Rajasthan, and the dispute over the mosque in Shambal in U.P. and Ajmer Dargah in Rajasthan being merely latest manifestation. The interim order of the Supreme Court passed on Thursday afternoon went one step further and restrained all the courts of the country, including High Courts, from issuing any direction for conducting the survey of religious structures till further order. As the Supreme Court is seized with validity of The Place of Worship Act, 1991, propriety warranted that no court should have gone ahead with entertaining the suit and passing the order for conducting survey at the drop of a hat.

The Place of Worship Act, 1991, freezes the religious structures as it existed on 15th August, 1947. The Act furthers the spirit of secularism, one of the basic features of the Constitution, in terms of both plain text of the Constitution and its interpretation by the Supreme Court. Even, otherwise notorious judgment by 5 Judge Bench that decided Ram Janambhumi disputes in November 2019, underscored the importance of the Act. Despite categorical mandate of The Place of Worship Act, 1991, and its interpretation by the Supreme Court in Ayodhya judgment, suits were filed in different parts of the country and the district judiciary, ignoring the letter and spirit of the Act, passed the order for conducting survey with alacrity. The matter eventually came to the Supreme Court against the order for conducting survey passed in case of Kashi Vishwanath Temple in Benaras, and the last Chief Justice D.Y. Chandrachud, who authored Ayodhya judgment and highlighted the salient aspect of the Place of Worship Act, paradoxically, made a perilous and an utterly avoidable observation that the 1991 Act did not stand in the way of evaluating the character of place of worship. This order of Chief Justice Chandrachud unleashed a Frankenstein Monster resulting in the filing of suits in many parts of the country.

The filing of these suits and the perfunctory manner of passing orders for conducting the survey injected further toxicity in an already communally–surcharged milieu. In a time of hideously polarized politics, the Supreme Court is, perhaps, the only institution to steer clear of divisive politics. Thus, the duty was cast on the Supreme Court to rectify the horrendous error committed by Chief Justice Chandrachud, and I am glad that the Bench of present Chief Justice Sanjeev Khanna and his companion judges, Justice Sanjay Kumar and Justice K.V. Viswanathan rose to the occasion and passed salutary order restraining even registration of any suit and no effective order for conducting survey of religious places till the Supreme Court finally adjudicates the validity of the Place of Worship Act, 1991. This order is Cri de Coeur of the time.

In the process, the Supreme Court has regained its ability to act as a problem-solver. The purists of constitutional jurisprudence maintain that the role of the Constitutional Court is to interpret the Constitution and problem-solving is not its job. But the reality on the ground, marked by the presence of precariously discordant politics, the Constitutional Court has no option but to act as a problem-solver. There have been numerous instances in the last 30-40 years when the timely intervention of the courts solved the problem. The intervention of the court in the Place of Worship Act came a little late, and the delayed response is wholly attributable to the last Chief Justice Chandrachud, who lacked commitment to uphold the principle of secularism.

Another gratifying aspect of the Supreme Court intervention lies in the fact that it has exposed the hypocrisy of the Modi government. The Place of Worship Act, 1991, is an ordinary Act and the Parliament is competent to repeal it, and Modi government enjoyed brute majority between 2019 and 2024, and enjoys a comfortable majority even in the present term of LOK SABHA. But the Modi government and its ideological mentor RSS have egged its fringe elements to file suits and expected the judiciary, especially the Supreme Court, to facilitate this. Sadly and regressively, the Supreme Court, right from the stewardship of Chief Justice Deepak Mishra to Chief Justice Chandrachud, became complaisant and left a disturbing legacy by undermining the sanctity of secularism.

Equally disturbing is the silence on the part of Mohan Bhagwat, the Chief of RSS. Bhagwat made a statement few months back that Ram Temple had been erected in Ayodhya, and it is not the stand of RSS to seek the conversion of other religious places. His silence is deplorable and duplicitous.
The trajectory of history and its evolution cannot be undone through vandalism. This writer condemned the ‘cancelled culture’ witnessed in the US and Europe in the recent past, especially by black people against white slave owners. The propensity of correcting historical wrongs, apart from disturbing communal amity, will drain the time, energy and resources of the society, and the casualty would be humanistic and equitable social order, fraternity and peaceful co-existence.

The wholesome order of the Supreme Court passed on 12th December, has brought much-needed relief at a time when the principle of secularism is under attack by majoritarian politics grounded in ethnicity and religiosity. One hopes that the Supreme Court will uphold the vires of The Place of Worship Act, 1991 on the ground that the Act was enacted to promote secularism as one of the fundamental tenets of the Indian Constitution and preserve the heritage of composite culture.

(Author: Vijay Kumar, Senior Advocate, Supreme Court and author of the recent book ’The Theory Of Basic Structure: Saviour Of The Constitution And Democracy)