Authored by Anubhav Mukherjee & Dibyanshu Dash, 3rd-year law students at National Law University, Odisha.
Introduction
Even after the introduction of the word “secular” via the 42nd Amendment in the Indian Constitution, the popular acceptance of the term within the polity as well as the populace has been sketchy at best. The demolition of the Babri Masjid in 1992, the subsequent ordering of the Supreme Court to build a temple in its place, and a spate of petitions before various Courts in India seeking the “reclamation” of ancient Hindu sites has brought the debate of the Places of Worship Act, 1991 (“Act”) to public attention.
The most recent burning of these cases is the dispute of the Shah Jama Masjid in Sambhal, where a local court ordered a survey to check for the remains of an alleged Hari-Har temple below the mosque. Igniting communal tensions all over the country has necessitated a rational and objective discourse regarding the role of the Supreme Court, the Places of Worship Act, and the Constitutionality of these reclamations. The issue being discussed in this article is not only pertinent to the Ram Janmabhoomi judgement or the ongoing Sambhal mosque dispute but also a question of wider constitutional questions arising out of a strict application of the Places of Worship Act.
We argue that the Places of Worship Act does not meet its intended objectives. Instead, it threatens to further worsen the situation. The article also discusses more holistic alternatives to the Act that would maintain religious harmony in the nation.
The Act Has Spurious Legislative Intent
The essence behind the Places of Worship Act is that it seeks to maintain the status quo of all religious institutions as they existed on 15th August, 1947.
Notably, the Babri Masjid- Ram Janmabhoomi dispute was one of the exceptions to the Act. In the case of Mohammed Siddiqui (D) Thr Lrs v. Mahant Suresh Das and Ors. (Ram Janmabhoomi Judgement), the Court went into a brief analysis of the Places of Worship Act. Relying on the then Home Minister Shankarrao Chavan’s statements to get an idea of the Legislative intent behind the enactment of the Act, the Court noted that the objective of the Act was “not to create new disputes and to rake up old controversies which had long been forgotten by the people…but facilitate the object sought to be achieved.” It further noted that by this enactment, the State has created a positive obligation to the people to uphold the equality of religions and secularism as a Fundamental Duty.
It would be naiveté on the part of a constitutional court to assume legislative intent as a sole deciding authority without factoring in political considerations. If an incumbent government changes a law made by a previous government, it does not necessarily mean that the mood of the citizenry regarding that law has changed. It may simply mean that politics has. Furthermore, relying only on legislative intent would also justify despotism to some extent.
Even if we were to factor in legislative intent as the sole factor, two questions of seminal importance, without which any adjudication would remain incomplete, are:
What was the rationale for keeping the cut-off date as 15th August 1947 in the Act?
What was the legislative objective behind keeping the Ram Janmabhoomi Dispute out of its purview?
Critics of the Act state that 15th August 1947 is a sign of colonial continuity, whereas its supporters claim that it is the time from which the Indians got control over their own affairs. The second argument does not seem to bear much merit. There have been several instances where post-independence governments reached into the injustices of the past, and attempted to remedy them in the present. Revamping criminal laws, doing away with discriminatory provisions such as rejection of the zamindari system, prison reforms, and even the creation of the Constitution itself is enough proof that the modern state is limited to curing not just colonial, but also pre-colonial defects.
Therefore, putting a stopper to judicial discourse on the entire subject that still remains a sore spot for a large portion of the Indian population is quite counter-productive. As is the trend on controversial matters, the Supreme Court seems to be steering clear of the adjudication of the issues on the Places of Worship Act which has remained pending for more than four years.
The reason behind the exclusion of the Ram Temple in the Places of Worship Act remains a mystery. Disputes of a similar nature other than the Ram Janmabhoomi case were also pending before the Court during that time, most notably the Krishna Janmabhoomi Dispute. One cannot help but ascribe such exceptions to the spectre of politics in such cases.
The Judiciary Must Cure Colonial Ills
One of the earliest debates in Indian judicial history was between Justice Shah and Justice Vivian Bose regarding the nature of the Constitution. Justice Shah took a conservative view that the Constitution of India was merely a continuation of the Government of India Act, 1935 and other colonial laws; and the Supreme Court was a mere successor of the Privy Council. Justice Bose, on the other hand, believed that the Constitution was a revolutionary document that put to rest all colonial ills in one fell swipe. Indeed, he noted,
In our opinion, the Constitution blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold.
One of the main arguments posited by Justice Bose was that of fundamental rights. He noted that no colonial state offers inalienable fundamental rights to its citizens. The views of progressive judges such as Justice Bose are not mere obiter dicta in judgements. They reflect the new and budding hope that had arisen among the people of the nation after independence.
It would be unjust on the Supreme Court’s part to put a stopper to post-colonial reclamations through the brute force of the State. The Act inherently maintains the colonial status quo and prevents any attempts to challenge it by giving the excuse of communal disharmony. However, it would be highly unwise to let such fear become the consideration behind denying an entire community their fundamental rights.
Citing the iconic Granville Austin in the case of Property Owners Association and Ors. v. State of Maharashtra, the Supreme Court says, “The Judiciary was to be the arm of the social revolution, upholding the quality that Indians had longed for in colonial days…. The courts were also idealised because, as guardians of the Constitution, they would be the expression of a new law created by Indians for Indians.” A statutory bar to move the court for enforcement of one's rights is eerily reminiscent of a colonial judiciary before which Indians had no rights. It is also in violation of the principles of non-retrogression which posit that once a right (to move court) is granted, it cannot be taken away.
In the case of Anita Kushwaha v. Pushap Sudan, the Supreme Court held that access to justice is a part of the Right to Life under Article 21 and that an inability to access the Courts violates Article 14 of the Constitution. Such non-access must be read liberally to mean not just lack of a physical access to the Courts, but also be expanded in its meaning to include laws such as this one which bar access to courts to secure a Right to worship which is a fundamental right under Article 25 of the Constitution.
Recourse Before the Court
This second section of the essay shall mainly focus on what the Court should do in such a case. While it has been established in the first half of the essay that the radical approach of the Act is not conducive to the democratic environment of the country, there is nonetheless a need to maintain a balance. One must begin such an analysis with an honest admission that a flawless adjudication will not be possible. The Court will not be dealing with an offender charged with a crime, but with communities not responsible for historical tragedies. Constitutional courts, especially the Supreme Court must ensure that the constitutional mandate of protecting minority communities must not be alienated in this case. The Court in Mohammed Siddiqui took quite a balanced approach by granting the Appellant side an alternate parcel of land of 5 acres nearby. It is undoubtedly true that the Court must balance a tightrope in this case.
It is a sad but true fact that most civil courts in the country do not have the Constitutional or historical expertise to deal with sensitive matters that are likely to arise out of such cases. There are two angles where an adjudicating authority must be beyond scrutiny in deciding. The first is the burden of proof and evidence necessary by either side to prove their case. Distortion of historical records, confusing archaeological indicators, and inherent bias make this quite a difficult proposition. A proof beyond reasonable doubt such as in criminal law is not practical in this case, but nonetheless, the nuance involved in admitting such a case is more than the ordinary civil court can manage. In the case of Miller v. Minister of Pensions, Lord Denning discussing the burden of proof explained,
It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
The Supreme Court must set clear guidelines for admitting such cases. In the present Sambhal Mosque dispute, it was the hasty orders passed by a Civil Court that led to communal tensions. It is important to deter the frivolous filings before the Court that indeed have the effect of stoking communal tensions.
The second angle is a refined understanding of the historical and constitutional implications of passing such judgements in favour of either party. Boiling the facts down to the simplest matters, the implications are that there may be a demolition of a religious structure that has existed there for centuries, and is an active place of worship. Civil Courts do not have the necessary expertise to appreciate such nuance, and an error would be far too dear.
A Truth and Reconciliation Commission
A Truth and Reconciliation Commission was established in South Africa after the Apartheid period to bring about a reconciliation of the human rights violations that had occurred at that time. Even in India, in the case of In Re: Article 370 of the Constitution, Justice S.K. Kaul had suggested the establishment of such a commission whose scope was to bring closure to the citizens of the valley. In an emphatic tribute to the transformative power of the Constitution, Justice Kaul noted,
I am alive to the challenge that recommending the setting up of a truth and reconciliation is beyond the realm of this Court. However, I am of the view that transitional justice, and its constituents, are facets of transformative constitutionalism. Globally, constitutionalism has evolved to encompass responsibility of both state and non-state actors with respect to human-rights violations. This includes the duty to take reasonable steps to carry out investigations of violations. It is in this context that the proposed truth and reconciliation commission accords with constitutionalism.
The scope of such Truth and Reconciliation Commission must be broad. It must possess the power to not just decide mere archaeological and civil questions regarding the structure that existed on that land but also aim for the closure of hostilities between the two communities. It must comprise scholars, judges, academicians, and members of civil society who possess the necessary intellectual expertise to bring a peaceful resolution to the pressure cooker that was bound to explode under the coercive pressure of the Places of Worship Act.
In Re Article 370 gave due consideration to the art of “ubuntu” or humanity to others that should be central to the process of reconciliation. The Supreme Court may use its powers under Article 142 of the Constitution to set up this Committee, and then provide overarching guidelines regarding its operation and functioning. Just like the Court’s guidelines in Vishaka and Ors. v. State of Rajasthan became a model example around the world, one may hope that a similar effect may be achieved here. If successful, one of the oldest and most contentious issues that is holding back the progress of the nation can be brought to its logical conclusion with peace and goodwill subsisting among communities.
Demolition Must be the Radical Option
In an article such as this, one can only delay discussing the elephant in the room for a while. When the Committees and Courts have decided, what happens to the place of worship that is standing in that place? It has already been discussed that the current citizens of the country cannot be deprived of their rights under Article 25. Nor can they be blamed for events that had happened centuries prior. The difficult moral question therefore arises: what is to be done in such cases? Such questions are deeply sentimental and pose the risk of causing tensions among communities. If not handled properly, one may see the opposite effect of what they set out to do. The Truth and Reconciliation Commission must operate on the standing principle that the status quo ante must not be disturbed unless the situation becomes extremely unavoidable. It must be resorted to only in the rarest of the rare circumstances. The question inevitably arises as to which case the demolition of an existing structure is justifiable. However, it is not possible for any court or tribunal to set out an exact set of circumstances, and nor will it be wise to bind the committee to rigorous procedure. Flexibility of procedure has to be considered in such cases. However, a demolition order must not be carried out in haste, and multiple stages of verification of such orders must be undertaken. The Supreme Court must look into the peculiar facts and circumstances of each case before authorising a demolition. Even in cases where the demolition of an existing structure has been unavoidable, alternate arrangements must be provided to the aggrieved party to ensure that their fundamental rights are not infringed. As mentioned earlier, the wisdom behind allocating an alternate plot of land to the aggrieved party in the case of Mohammad Siddiqui went a long way in ensuring that communal harmony can be maintained.
Conclusion
The situation before the Courts in the country today is peculiar. It is reminiscent of the snail being stuck on the sharp edge of a knife. It must move, remaining constant is not an option. We have sufficiently explored the reasons behind why the Places of Worship Act cannot be allowed to continue. Rather than protecting the secular fabric of the nation, it threatens to add doubt, hatred, and malice to it. The spate of petitions before the Civil Courts around the country, and the public reactions to the judgements of such courts are adequate evidence that actions such as educating the lower courts on the Places of Worship Act will not work. The petitions will continue, and the violence that tends to follow such polarising petitions will rear their heads like an ugly hydra. There is no ideal solution to the issue. This is not a typical case that courts are habituated to deal with where one person is right, and the other wrong. Moral, political, social, and religious implications dominate actions such as these.
However, it is also true that resolution to such disputes is possible. One of the biggest examples of that is the Ram Janambhoomi Dispute. In the end, both parties got what they deserved, and constitutionalism prevailed. The role of civil society in such cases is perhaps more than the judiciary’s. At the end of the day, it is the people who have to live in harmony with each other, and it is they who are affected by communal disturbances the most.
Therefore, as we sort out the mess of the past, may we embody the values of Article 51A(h) of the Constitution of India and in our actions develop “scientific temper, humanism, and the spirit of inquiry and reform.”