Why revanchist claims on places of worship are legally untenable

November 9, 2019 was a historic day for the Supreme Court of India. That day, five judges delivered a unanimous verdict in the case of M. Siddiq v. Mahant Suresh Das popularly known as Ram Janmabhoomi-Babri Masjid Judgment. In what has been hailed by many as a masterful act of judicial policy, the panel, speaking with one voice in a judgment awarded to no individual judge, found that Hindu parties had illegally planted idols in the courtyard central Babri Mosque on the night of December 22-23, 1949 thus desecrating it and securing its sealing by a magistrate a week later and that the Hindu fanatics committed a serious crime by demolishing the mosque on December 6, 1992 He also ruled that nonetheless, title to the underlying land must be declared in favor of Ram Lalla Virajman, the baby deity Lord Ram who had made the best case of continuous possession and worship since time immemorial. The Sunni Central Waqf Board, in compensation for the illegal desecration in 1949 and the complete destruction of their structure in 1992, was to receive five acres of land elsewhere in Ayodhya, while a trust to be established as the representative of the deity would have absolute control of the disputed land and other properties acquired around it.

Also unprecedented, if not historic, was the celebration hosted by then Chief Justice Ranjan Gogoi who constituted and led the bench of five judges. This triumphalism would be worth it if the judgment succeeds in closing the door to revanchist claims on other mosques which were already in the crosshairs of fanatics long before it was pronounced: Gyanvapi and Shahi Idgah in Varanasi and Mathura, and not less than 3,000 others scattered around the nation. Indeed, one of their strongest claims to judicial authority lies in the way the judiciary has explained the Places of Worship Act 1991 and its effects. In paragraph 97, the judges argue that this law “imposes two unshakeable and imperative standards”: The first is an absolute prohibition on the conversion of a place of worship from one religious denomination to that of any other religion. Second, to preserve the religious character of each place of worship as it existed at Independence on August 15, 1947. The only exceptions, enshrined in the 1991 law itself, were the Ram Janmabhoomi-Babri Masjid dispute which was pending in court. , all matters which became final by judicial verdict or concluded before 18 September 1991, and all monuments governed by the Ancient Monuments and Archaeological Sites and Remains Act 1958.

The 1991 law, the justices explained, “secures the fundamental values ​​of the Constitution…it emphasizes human dignity and brotherhood”, and it provides “a guarantee for the preservation of the religious character of places of public worship as they existed on 15-8-1947”. Paragraph 102, in resounding terms, argues that this law “imposes an undeniable obligation to uphold our commitment to secularism under the Indian Constitution“, and that this is to protect the fundamental characteristics of the Constitution.

What then of the series of lawsuits filed across the country, court orders ordering entry into ancient mosques, videographs by commissioners of justice, searches for religious artifacts or symbolism, and claims of the right of one denomination to worship in another’s place of worship? More importantly, what about the timidity of constitutional courts in the face of such claims, or their propensity to allow such questions to fester? And what about unnecessary comments or remarks during hearings, which could suggest new ways for the media and the general public to use history and its wrongs to oppress the present and the future? And finally, does the exclusion of ancient monuments and archaeological sites from the scope of section 4 of the Places of Worship Act 1991 make a material difference in these prosecutions?

The first question is easy to answer, and not just because of the law on places of worship. As far as the law is concerned, the bench in the Mr. Siddiq case (supra) expressly overturned the findings of the Allahabad High Court that certain types of disputes could be kept alive or subsequently raised. The five judges raised non-regression to the rank of a fundamental characteristic of the Constitution. These findings were made after noting that many ancient places of worship were built on the ruins of others, and sometimes even after destroying those that stood before, and that as a result religious artifacts, pillars, stones , sculptures and even idols could have been subsumed inside. the last place of worship.

Apart from the 1991 law, it is apparent from the nature of these actions that they are time-barred and unsustainable. Judging by news reports, the claims in these lawsuits are not based on title, ownership and continued possession, but on the right to worship at particular sites. The basis for these claims is the belief that a holy temple was destroyed centuries ago and a mosque was built on the ruins, possibly using the pillars, stones and carvings of the ancient temple. Such claims, as held by the bench in Mr Siddiq, are clearly barred under the Limitation Act, 1963. In short, the judges held that the Limitation Acts 1908 and 1963 apply even to claims on behalf of a deity or an idol. They held that claims for dispossession of property by a religious denomination were time-barred after 12 years and claims based on the management of temples or the right to worship were time-barred after six years.

My second question is clearly rhetorical, and the reader can fill in the answers.

As for the third, it must be said that open questions and discussions during court hearings are normal. But when questions as weighty as this are encountered, the Supreme Court ponders the possibility of finds by a court commissioner – and what they mean – and speculates about a Parsi Agyari in which a Christian cross might be found, and the “hybrid” nature of such Agyari, some clarification becomes necessary.

The Places of Worship Act 1991 addresses one main question: What was the religious character of a place of worship on 15 August 1947? The law is not about what existed before the place of worship was built, what materials were used to build it, or whether it is based on religious symbols or icons or artifacts of any other religious denomination. All that matters is whether on the date India gained independence it was a temple, mosque, gurudwara, church, monastery or any other place of worship. As the SC rightly (and ultimately) argued in Siddiq, the purpose of the law is not to right historical wrongs but to start afresh at our Independence.

This brings me to the last question, on the Ancient Monuments Act 1958. This Act applies to ancient monuments and archaeological sites which have been notified under the Preservation of Ancient Monuments or Ancient and Historic Monuments and Archaeological Sites and Remains (Declaration of National Significance) Act 1904, 1951 , or those declared to be of national importance under the 1958 Act itself. The mosques that are the subject of most of these lawsuits are not covered by the 1958 law, so it is essentially a red herring. However, some other monuments like the Qutub Minar and the Taj Mahal are certainly covered by the 1958 law, but most of them are not places of worship. Sometimes there are places of worship in ancient monuments, and in such cases Section 16 of the 1958 Act grants them protection which is broadly equivalent to that available under the Places Act of worship. In any case, this law prohibits civil suits concerning any matter within the jurisdiction of the National Monuments Authority, so it is unlikely that the 1958 law will come to the rescue of these revanchist actions.

The writer is a senior lawyer