Why Supreme Court must act now to protect India's mosques

A civil judge's order on November 19, for a survey of the Shahi Jama Masjid in Sambhal in west UP, followed by violence that claimed at least five lives, has unfortunately once again reignited public debate over the Places of Worship Act, 1991. This Act was enacted by the Parliament with the purpose of maintaining the religious character of all places of worship as they existed on August 15, 1947. The Act seeks to prevent the conversion of any place of worship of one religious community into that of another. But sadly to what avail?In the 2019 Babri Masjid judgment, a five-judge bench of the Supreme Court strongly emphasised the protections provided by the Places of Worship (Special Provisions) Act, 1991. The court declared that the Act upheld the constitutional principles of secularism and equality of all religions, both of which are fundamental features of the Constitution.However, not long after this judgement, a petition was filed challenging the legality of the 1991 Act. The petition contained controversial claims, alleging that India had been under foreign domination for over 700 years and asserting that it was the duty of citizens to reclaim the nation’s past glory. It argued that Parliament had improperly curtailed these efforts. Subsequently, several similar petitions were filed, all of which are still pending.A bench of the Supreme Court, presided over by then Chief Justice SA Bobde, issued a notice on these petitions. This was noteworthy because Justice Bobde had been part of the bench in the Babri Masjid judgement, which had underlined the significance of the 1991 Act. This issuance of notice marked a notable shift in approach, as it opened the door for a legal challenge to the Act despite its earlier endorsement in the Babri Masjid judgement. medium115893269Amid these conflicting positions from the Supreme Court, the Varanasi district court ordered a survey of the Gyanvapi Masjid, which later reached the Supreme Court. On this occasion, a bench led by then Chief Justice DY Chandrachud permitted the survey, effectively overlooking the provisions of the Places of Worship Act, 1991, despite objections raised by the Masjid Committee. Justice Chandrachud also orally remarked that determining the “religious character of a place of worship” was not prohibited under the 1991 Act but the bench did not discuss the impact of 1991. Consequently, the Archaeological Survey of India (ASI) proceeded with the survey under the court's approval. Following this, similar matters concerning other mosques were brought before the Supreme Court, with more cases emerging across the country.When the Allahabad high court addressed matters related to the Gyanvapi Masjid, it made remarks about the Places of Worship Act, 1991, that appeared inconsistent with the Act's objectives. The HC asserted that the lawsuits were not intended to alter the property or its character. In a related case, the Court noted that the term "religious character" was not defined in the 1991 Act. These interpretations effectively opened the door for judges across North India to issue orders for surveys of various mosques, further complicating the issue. medium115893864In the Sambhal Shahi Masjid case, the civil judge issued an order in an unusually hurried manner. Regardless of this urgency, the order is fundamentally flawed, given the historical fact that the structure has been a mosque with an established religious character for over 500 years. The character of a building is determined by various factors, including its original purpose and consistent usage. Since the structure has functioned as a mosque for decades and was constructed explicitly for that purpose, seeking a statutory definition of "religious character" under the Places of Worship Act, 1991, is both unnecessary and irrelevant.The judge's interpretation of the 1991 Act in this instance is not only erroneous but also a significant misstep, especially given the extreme sensitivity of such issues. Even if the neutrality of first-instance judges is assumed, they are obligated to adhere to the HC's interpretations.However, the Allahabad HC itself has erred in its handling of the Act through several recent rulings. At this critical juncture, it is imperative for the Supreme Court to reassess the matter of surveys independently of its earlier order in the Gyanvapi Masjid case, as that decision did not consider the implications of the 1991 Act. medium nocaptionhttp://www.youtube.com/watch?v=8-g0RlxcJNcAnother critical aspect of the challenge to the 1991 Act and the demands for surveys of active mosques relates to the legal status of a masjid. A mosque, like all other places of worship, must be recognised as a site of special significance, protected under the chapter on fundamental rights in the Indian Constitution. However, while delivering the majority opinion in the 1993 Ismail Farooqui case, Justice JS Verma introduced the concept of “comparative significance” for religious places. The Court controversially stated that "a mosque is not an essential part of the religion of Islam" since Muslims can offer namaz anywhere, even in open spaces. This general observation has since influenced perceptions of mosques and their legal status, raising concerns about unequal treatment compared to other religious sites.Given the context of the issue before the Supreme Court, such an observation was entirely unnecessary. It has contributed to a perception that mosques can be treated unequally and differently from other religious places. As a result, another critical matter for the Supreme Court to address is a review of this statement about mosques. This review is essential before the Court examines the validity of the Places of Worship Act, 1991, to ensure a fair and equal treatment to all religious places. medium nocaption1158943051. How former CJI paved the way for more mandir-masjid clashes2. Do Sambhal, Ajmer show RSS chief Mohan Bhagwat's message is forgotten?3. Sambhal riots are proof that Places of Worship Act is as good as dead medium nocaption115894325The writer is a senior advocate, Supreme Court