The Supreme Court has rightly directed that no new suits will be entertained pertaining to mosques allegedly built over temples in centuries past or disputes over other places of worship, ensuring that the aim of the Places of Worship (Special Provisions) Act (PWA), 1991, is not defeated by a questionable interpretation of the former CJI Dhananjaya Chandrachud-led bench, which opined that “ascertaining the character of a place of worship” was not barred. Eighteen petitions will be frozen until the government files its response after four weeks to a plea seeking to invalidate this law.
The PWA is the most succinct of laws, consisting of just eight sections, leaving no room for interpretation. There are no ifs and buts, no notwithstanding clauses, nor “without prejudice to” phrases that allow judges to stretch its meaning. This makes it astounding that the Supreme Court, headed by the 50th CJI Dhananjaya Chandrachud, had not dismissed petitions filed with alleged oblique motives to weaken the aim and object of the PWA, which ensures that all places of worship preserve their character as of August 15, 1947.
Such petitions destroy the secular fabric of this country, making a mockery of the apex court upholding the words “secular” and “socialism” inserted into the preamble through the 42nd amendment of the Constitution in 1976. These petitions perpetuate disputes like that of Ayodhya, arguing that “barbaric invaders” had converted pre-existing temples into mosques. This was precisely why the PWA was enacted.
The Supreme Court ought to have immediately invoked its special powers under Article 142 to do “complete justice” by clubbing and dismissing the 18 petitions asking for surveys of mosques, with one even claiming that the Taj Mahal was a pre-existing temple. Petitions like the one filed on October 28, 2020, sought to have the apex court declare void sections 3 and 4 of the PWA, which barred changing the character of all places of worship as they existed on August 15, 1947.
On August 4, 2023, the apex court dismissed a challenge filed by the management of the Anjuman Intezamia Masjid against a judicial decision permitting a survey of the Gyanvapi mosque and its environs. The judges said the solicitor general had assured them that the ASI would use “non-invasive methods” to “ascertain the character” of the Gyanvapi mosque and what lay beneath it.
Speaking for the five-judge bench, the 50th CJI Dhananjaya Chandrachud opined that although the religious character of a place of worship could not be changed, there was nothing in the PWA to prevent ascertaining the character of a place of worship, so long as its status quo was maintained. Shorn of semantics and clever wordplay, district judges could now order archaeologists to conduct “non-invasive” surveys using seismographs to find out what lay beneath mosques, churches, or synagogues.
The argument of the Hindu side that the Places of Worship (Special Provisions) Act, 1991, barred judicial review, which was part of the basic structure of the Constitution, received a boost from Chandrachud’s skewed interpretation. Clever lawyers could have used legal sophistry to sway the judges towards a view that the impugned law violated the basic structure of the Constitution, which erudite senior advocates like Vice President Jagdeep Dhankar (who now faces a no-confidence motion) said the judges had no jurisdiction to formulate anyway.
The non-Hindu side, who opposed the petitions, also argued that allowing surveys would demolish the aim of the PWA and secularism, which also forms part of the basic structure of the Constitution. Jagdeep Dhankar has his votaries, like Tamil Nadu Governor R.N. Ravi and, recently, an Allahabad High Court judge, Shekhar Kumar Yadav, who publicly stated that the laws exist for the benefit of the majority. R.N. Ravi had said that India does not need secularism because we followed “dharma,” which encapsulated secularism.
The five-judge bench led by CJI Chandrachud infused a meaning into the PWA that Parliament never intended, thereby permitting litigation to sprout all over the country, demanding the Archaeological Survey of India (ASI) ascertain whether a mosque or a dargah was built over a temple in centuries past. Without intending to do so, the five-judge bench led by CJI Chandrachud gave a fillip to judges like Justice Shekhar Yadav and Governor R.N. Ravi.
Dushyant Dave indirectly accused Justice Chandrachud of not being true to the Constitution, which is the only conscience of all judges. With his larger-than-life image projected for all to see, he let down the country, opined Dave. But close on the heels of this controversy, we have a fragmented Opposition uniting to pass a no-confidence resolution against Vice President Jagdeep Dhankar, whom they have accused of being an “RSS stooge” and acting like a “spokesperson of the Modi government.”
Dhankar, a senior Supreme Court advocate, warned the judiciary many times against putting fetters on Parliament to amend the Constitution by conceptualizing the basic structure doctrine. He was voicing what Kiren Rijiju did innumerable times before he was shunted to a different portfolio. We must accept that high Constitutional dignitaries like Vice President Jagdeep Dhankar, Allahabad High Court Judge Shekhar Yadav (who faces impeachment for his views that justice is justice for the majority), and the 50th CJI Chandrachud-led bench allowed the spirit of the PWA to be defeated by declaring that it did not expressly bar the “ascertainment of the character of a place of worship.” Ipso facto, we live in a nation where secularism is an ideal, but Hindutva is a reality.
Olav Albuquerque holds a Ph.D. in law and is a senior journalist-cum-advocate at the Bombay High Court.
