Places of Worship (Special Provision) Act, 1991 (herein referred to as PoW) was drafted to bar all cases seeking to restore Hindu Mandirs, even though it’s worded to cover all religious places, the factual and historical reality of last 1,000 years was one of the destruction of over 40,000 Mandirs by barbaric invaders and construction of towers of triumph upon many of them to suppress and destroy the spirit of our civilisation. The rationale peddled for PoW was that such a law is necessary to maintain peace and harmony. This is another example of perverse secularism where the burden is to be eternally borne by Hindus at the cost of their self-respect, property rights, fundamental rights, and cultural and civilisational rights.
Constitutional validity of PoW
The argument to impose this burden is that to do anything else will lead to riots and violence as has happened in a recent example when Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) laws were opposed by a street veto in Shaheen Bagh and subsequent Delhi riots which led to a loss of fifty-three lives and destruction of properties. These arguments are self-serving, attempt to treat Victim and Criminal as the same and deny the principle of humanity expressed by Martin Luther King on behalf of all who were subjugated and oppressed, that “without justice, there can be no peace”. Before examining the constitutional validity of PoW or its application and scope let us first squarely address the disinformation being peddled that the Ram Janmabhoomi Judgement by the Constitutional bench of the Supreme Court of India has upheld the constitutional validity of the PoW Act and has deemed it to be a part of the basic structure of the Constitution, when in reality nothing like this happened. It is trite to say that the Supreme Court upholds a law/any section thereof or strikes it down only when it is directly in challenge before the court. The PoW did not apply to the Ram Janmabhoomi dispute given to section 5, thus no issues on its constitutional validity were framed, no pleadings filed, no arguments advanced nor its constitutional validity decided. Certain observations on the PoW Act were made but those are merely obiter dicta and not the ratio decidendi of the judgment as explained above. Further, this fact is borne out by the Supreme Court admitting and issuing notice on the Constitutional challenge to the Pow Act, which wouldn’t have happened if the Constitution Bench had already upheld it in the Ram Janmabhoomi case.
Now, let’s examine how PoW is unconstitutional and even if the law arguably is constitutional it’s inapplicable to Gyanvapi, Krishna Janmabhoomi and numerous other such mandir cases. PoW law seeks to take away the power of Judicial Review which is a part of the basic structure of the Indian Constitution, and any law violative of it unconstitutional. It was held in the case of S.P. Sampath Kumar and Ors. vs. Union of India (UOI) and Ors. (09.12.1986 – SC) “It is now well-settled as a result of the decision of this Court in Minerva Mills Ltd. and Ors. v. Union of India and Ors. MANU/SC/0075/1980 :  1 SCR 206 that judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in the exercise of its constituent power can abrogate it or take it away.
“If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it” — Dr BR Ambedkar
If the power of judicial review is abrogated or taken away the Constitution will cease to be what it is. It is a fundamental principle of our constitutional scheme that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. It is a limited Government which we have under the Constitution and both the executive and the legislature have to act within the limits of the power conferred upon them under the Constitution.”
The relevant part of section 4(2) of PoW Act states “If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority: ” Thus this is a clear bar on Jurisdiction of courts which is unconstitutional, the section goes further than mere bar on new cases, it also bars pending appeals i.e when one party has won in original suit or has interim orders in its favor then superior courts can’t even hear appeal to it, As a matter of practice even when a party which has filed a case in Supreme Court wants to withdraw it, then also it is done only with the permission of the court whereas this law by parliamentary fiat automatically abets all suits, appeals and any other proceedings.
Another aspect is that PoW takes away from all persons the right to approach court to enforce their legal and fundamental rights, so it can lead to a situation where despite overwhelming evidence or ironclad proof still the rights of any person will be turned to nullity by this draconian law. Such denial of access to Justice has happened only once in independent India during evil days of an emergency when even habeas corpus was suspended. PoW law keeps the legal rights of persons under perpetual suspension. Access to justice is part of the basic structure and denial thereof is unconstitutional.
Soul of the Constitution
In the words of Dr BR Ambedkar, “If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.” Similarly, there are various other grounds due to which PoW is unconstitutional which are not being expanded upon due to paucity of space like the arbitrary cut-off date of 15 August 1947 for baring legal cases on restoration of mandirs when Article 372 of the Constitution of India embodies the legal continuity between the British sovereignty and independent India or how it is violative of equality by carving out exception only for Ram Janambhoomi not for other similarly situated, equally important and uniquely dharmic places. Since the constitutional challenge to PoW is still pending, even if for argument’s sake it’s assumed that PoW is constitutional even then it will not apply to the Gyanvapi Case, Krishna Janmabhoomi etc. discussion on Gyanvapi case will be illustrative in proving that, as Muslim side attempts to argue that there exists a mosque and thus any proceedings including ASI survey are barred section 3 of PoW which states “Bar of conversion of places of worship.—No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.” Section 3 can of course not be read in isolation but even at its highest it bars “conversion” but does not bar identification of religious character of any place, that is essentially a question of fact or a mixed question of fact and law. A structure can’t be both a Mandir and a mosque at the same time. The PoW Act does not define the term ‘religious character” thus a trial to ascertain what is the true religious character of a place as existing on 15 August 1947, is permissible under the PoW Act.This is also the view of the Allahabad High Court which finds support from the fact that even the SC allowed a survey of the Gyanvapi complex to identify religious character.
The identification of religious characters will have a material effect as there is a prohibition on conversion of religious characters as existed on Aug 15, 1947. The religious character on that date will have to be seen in light of the facts of the case as well as the applicable law. About the mandir, the law is settled that “once a mandir always a mandir”
The identification of religious characters will have a material effect as there is a prohibition on conversion of religious characters as existed on Aug 15, 1947. The religious character on that date will have to be seen in light of the facts of the case as well as the applicable law. About the mandir, the law is settled that “once a mandir always a mandir”.
It was observed in the Ram Janmabhoomi case that even “The destruction of the idol does not result in the termination of the pious purpose and consequently the endowment. Even where the idol is destroyed, or the presence of the idol itself is intermittent or absent, the legal personality created by the endowment continues to subsist. The effect in the case of the deity being Swayambhu would be that land would be inseparable from the manifestation. Lastly, even if none of the above points is accepted then a clear exception for most mandirs is created by PoW section 4(3) (a) – “Nothing contained in sub-section (1) and sub-section (2) shall apply to,— (a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force;” Thus we will need to consider the definition given under Ancient Monuments and Archaeological Sites and Remains Act, 1958 to see which places of worship satisfy this test and hence are outside the purview of PoW Act.
Section 2(a) of the ASI Act: “Definitions. In this Act, unless the context otherwise requires, (a) “ancient monument” means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes (i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of, an ancient monument;” The vital criteria which emerge from PoW Section 4(3)(a) read with 2(a) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 Act is that “… which has been in existence for not less than one hundred years…”
Needless to say, all ancient mandirs in India fulfil the criteria including Gyanvapi, Krishan Janmabhoomi etc and thus are outside the purview of the restriction placed by the PoW. The egregious example of secularism of the PoW act and the burden it cast on Sanatan Dharam was that it was not made applicable to the Muslim-majority state of Jammu and Kashmir where more than 200 Mandir were destroyed, demolished or converted during the time this act was in force in the rest of Bharat. PoW needed to be imposed upon the rest of Bharat as unlike Persians, Egyptians, or other so-called pagan religions, Sanatan Dharma consistently fought (the first FIR was filed under British rule On November 30, 1858, by one Mohammad Salim against Nihang Sikhs, in Ram Janambhoomi dispute), survived in its original land and is now unflinchingly claiming justice for 40,000 temples destroyed by the timeless legal principle of “Fiat justitia ruat caelum” – let justice be done, though the heavens may fall.