Opinion Op Ed 14 Nov 2019 Supreme Court places ...
The writer is a former faculty member of the National Judicial Academy, Bhopal.

Supreme Court places focus on 1991 law to protect other places of worship

Published Nov 14, 2019, 1:34 am IST
Updated Nov 14, 2019, 1:34 am IST
It further emphasises that “history and its wrongs shall not be used as instruments to oppress the present and the future”.
Supreme Court.
 Supreme Court.

The verdict in the Ayodhya case considered in detail three suits filed by the Nirmohi Akhara (Suit 3), the Sunni Central Waqf Board (Suit 4) and by Ram Lalla the deity (Suit 5). The suit by Nirmohi Akhara was dismissed for being barred by limitation. The deity’s suit was decreed with conditions for framing of a scheme and a trust for the construction of the temple at Ram Janambhoomi, the then disputed land, while the prayers in the suit was for a declaration of premises that it belonged to it and an injunction prohibiting the defendants from obstructing construction of a temple. The Waqf Board’s suit was partly decreed, despite the Supreme Court finding that “the destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law”. The court went on to add that “this court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied”. It further emphasises that “history and its wrongs shall not be used as instruments to oppress the present and the future”.

In the wake of the court finding that the “destruction of the mosque was a violation of the rule of law” and holding that “the Constitution postulates the equality of all faiths; tolerance and mutual coexistence nourish the secular commitment of our nation and its people”, will the order directing that that “land measuring five acres be allotted to the Sunni Central Waqf Board” be a justifying relief “necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship for the Muslims”?

 

There are reasons for at least the plaintiff, the Waqf Board, to feel that justice was not adequately extended to it while invoking Article 142. Further, the terms, used as “Hindus” and “Muslims”, do not appear blissful to be used in all the occasions in the judgment since the parties in the suits may not be treated as the representation of all Hindus or all Muslims in the country for deciding a question of law or a question of fact. Judicial decision-making may call for religious emotions, which the court has adequately considered and perhaps which led to the conclusion of the operational part of the judgment.

In this context, the positive appreciation of the verdict still remains to be observed in the days to come.

The Supreme Court, in its verdict, discussed in detail the Places of Worship (Special Provisions Act) Act 1991 and asserted its significance in the constitutional scheme of things and the responsibility of all to honour it.

Section 2 of the Act defines places of worship and Section 3 enacts a bar on the conversion of a place of worship of any religious denomination or a section of it into a place of worship of a different religious denomination or of a different segment of the same religious denomination. The court endorses this Act by saying that it was enacted to preserve secularism, a basic feature of the Constitution. “The state has, by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism, which is a part of the basic features of the Constitution”.

The court said, “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”.

Further, it observed, “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”.

“In its purest form, the non-retrogression principle holds that government may extend protection beyond what the Constitution requires, but it cannot retreat from that extension once made”. The Supreme Court introduced this principle in the judgment of Navtej Singh Johar vs Union of India.

A strict implementation of the Act is demanded thus by the Supreme Court in order to get liberated from any movements that may lead to a threat to secular values and generate communal unrest by raising entitlements of ownership/possession over existing structures on the basis of alleged historic wrongs.

The Supreme Court remarked that the law has been enacted to fulfil two purposes: “First, it prohibits the conversion of any place of worship. In doing so, it speaks to the future by mandating that the character of a place of public worship shall not be altered,” and thus bans the conversion of a place of worship or even a section of it “into a place of worship of a different religious denomination or of a different segment of the same religious denomination”.

The second purpose, the court observed, was that the law “seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on August 15, 1947 when India achieved independence from colonial rule”.

Section 6 mandates a three-year “imprisonment and a fine for contravening the provisions of Section 3”.

While rejecting the ruling made by Justice D.V. Sharma of the Allahabad high court, who had held that the protection given to the religious structures existing as on August 15, 1947 could be challenged, the court has asserted the protected freedom and rights over places of worship, that historical wrongs cannot be remedied by people taking the law into their own hands. Further by upholding that Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future, the court was again calling for the stoppage of any future conflict regarding places of worship and preserve the character of places of public worship as it existed on August 15, 1947.

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