Analyzing the Constitutional Perspective of the Place of Worship Act, 1991

Author – Om Burange, Maharashtra National Law University, Mumbai 

This article will try to understand the constitutional perspective of the Place of Worship Act, 1991 with reference to the current judicial presidents and ongoing cases. After the Ram Mandir case people or religious groups/associations started similar cases like the Ram Mandir where the conversion was done by the mughal emperor before independence. But this act prohibits the conversion of any other religion. Further we will also discuss if this violates the fundamental right or the religious right of the individual.

Place of Worship Act, 1991; Constitutional Law; Fundamental Rights; Secularism; Religious Conversion.

The belief of people creates the god; it’s the perception and upbringing of a person that make him/her believe that god exists. Even theistic cosmologists believe that god caused the Big Bang, which is the reason behind the existence of humans. Cultural and social conditioning and religious beliefs often come through the family and societal structures. From childhood, individuals are exposed to specific religious narratives and rituals which shape their minds. And these interpretations become their worldview. This conditioning often creates a powerful barrier to a person's thoughts. Moreover, belief in god gives a sense of purpose and meaning to individuals. Philosopher Immanuel Kant believes that belief in God satisfies the human longing for ultimate answers about existence, morality, and the afterlife. Even from an atheistic perspective, the idea of god continues in cultural narratives and human behaviour, influencing societal and religious structures.  

The Skeptics believe that the belief in god is a human construct, shaped by psychological needs and evolutionary survival mechanisms. This survival mechanism eventually took the shape of religion. To propagate and impose their religious thoughts on the people they chose the way of power to invade and to propagate the idea of establishing the regime over the subservient areas (countries, kingdoms). These rulers again and again used the technique of destruction of religious places to establish their religious places. This split the society into the religious groups.

During the Mughal era many Muslim invaders like Aurangzeb, Firuz Shah Tughlaq, Mahmud of Ghazni, Alauddin Khalji, Muzaffar Shah I and Mahmud Begada, converted the religious places.  This was not the only religious agenda but rather political. They forcefully started converting people. This conversion was at its peak but during the British, the number of conversions was less as compared to the Mughal period. However, after the independence and partition, the tension was high between the religious communities. The main reason was the partition because it was done based on religion.

Furthermore, to protect the integrity and maintain peace within the county and avoid the riots the Pace of Worship Act, 1991 (hereinafter the act) was brought to prohibit the conversion of religious places. But, the question arose that this act is a violation of the fundamental right of a person. Does section 3 and 4 Does the act violate the fundamental right? And even with this act why the Hon’ble Supreme Court gave a contradictory judgment to the act? To evaluate and understand these questions we should look into the history and understand the situations and circumstances during that time. We will also take a glimpse of the recent ongoing judgment regarding the constitutionality of the Place of Worship Act. 1991. And the importance of the said act so we can understand the advantages and disadvantages.  

The Act was introduced by the Narasimba Rao government to maintain peace and communal harmony in India. It aimed to prevent future riots but in 1992 the communal riots in Ayodhya were at its peak. Even though this exempted Ram mandir conflict, it still lacked to achieve its goal. In the case of Ismail Faruqui v. Union of India, the Supreme Court provided many interpretations of the act. While stressing on maintaining secularism.

The doctrine of “essential practices”, which determines whether specific religious practices affirm constitutional protection.  This act violates the rights of the marginalized peoples beliefs attached to religious sites, such as the role of mosques in Islam, even when they are not deemed essential by legal standards. Sections 3 and 4, which mandate the preservation of religious identities and bar jurisdiction over such cases. These provisions are examined against the backdrop of the Ayodhya verdict of 2019, where the Supreme Court upheld the Act as a cornerstone of India's secular framework. The question is that there has not been that much research done on this topic the authors tried to cover the all the points but they lack to interpret and connect the social problem that might arise if the Supreme Court declared this act unconstitutional but the thorough discussion has been done by the author on various judgments like Bhagwan Adi Vishweshwar Virajman v State of U.P. and the verdict given in the ayodhya case.

Also various legal and sociological theories and doctrines were discussed by the authors like Strict Necessity. But they compared the United States, America and India which is not relatable because there is a very vast difference between the cultural  and social diversity between both countries.

Qualitative methodology is employed to conduct the research. Secondary analysis has been conducted mainly by referring to various case law and historical evidence in India, its background, underlying factors, and historically-related data that was used to draw inferences to act. Various journals, newspaper articles, research papers, and online resources have been referred to for a better understanding of the past, present, and future of the Place of Worship Act 1991.  Another source of data was online dictionaries which helped in understanding the nuanced aspects of various data and the difficult terminologies that came along with it. It was also referred to when the reference lacked information regarding a concept.  Some references to quantitative data have also been made to substantiate the present findings.

The primary concern is that this act prohibits the judicial review that it’s a clear violation of the fundamental right. Article 25(1) which gives the right to a person to profess, practice and propagate his/her religion. This act clearly violates the word ‘Propagate’ which means to spread from person to person, or from place to place, to disseminate, diffuse; but due to the past injustice they have lost their right to propagate their religion.

This act mainly hinders the religious rights of the Hindus, Buddhist and Jain. As it is seen in many archaeological surveys that show the physical evidence that these sides were destroyed by the rulers. Considering this it is also unfair to the Muslim community that they have not done anything but due to their past they have to suffer through the communal riots. During the demolishing of the Babri Masjid hundreds of people died. This should also consider the hon’ble Supreme Court that this could eventually lead to the riots.

India is a diverse country which we can say is “India is a country of religion.” People follow many religions because of their upbringing or because of their perspective. Reason behind this is the invasion of various rulers who brought their religion and settled in India. They build places to worship so they can feel attached to the new land.

If we understand the human as a creature always fond of more , his urge never satisfies, like said by the philosophers “The human can never be satisfied completely and for always”. Firstly they were only fighting for the resources later they started fighting for the land and now for religion. Many political figures say that our Dharma (Religion) is in danger but we need to understand that these religions survived for centuries even in the worst circumstances. 

The Places of Worship Act, 1991 was established to maintain the status quo of all religious places of worship as they were on August 15, 1947. The Act restricts the alteration of any worship site and requires the preservation of the religious nature of these locations. It was enacted to support the principle of secularism embedded in the Indian Constitution. The Act embodies the serious responsibility assigned to both the state and its citizens to maintain and safeguard the equality of all religions. The concept of secularism is a fundamental element of the Constitution's basic structure, highlighting its significance. The Preamble of the constitution as it said by the N.A. Palkhiwala called the Preamble the "identity card of the constitution" which describes what’s given in the constitution. Even though India does not have any religion and it’s a secular country. Secularism was not the part of the preamble in the beginning but later it was added through the 42nd Amendment.

The Act serves as a legal extension of the concept of secularism, and a crucial element of secularism is safeguarding properties and places of worship. Nonetheless, the recent debate regarding the Act has questioned its constitutional legitimacy and weakened the secular foundation of the nation. The dispute is fueled by passionate religious fervor and indirect legal battles, even though the Act aims to safeguard the beliefs and religious freedoms of every community.

A basis for contesting the constitutional validity of the Act is that Section 4(2) prohibits judicial review. Nonetheless, this provision serves as a legitimate aspect of judicial restraint, instead of being a barrier. The religious freedom promised by Articles 25 and 26 The Constitution aims to serve as a framework for communal living, directing each religion to function in alignment with its cultural and social needs to create an equitable social structure. The safeguarding of these articles extends beyond doctrinal issues, seeking a balance between the strictness of the right to religious belief and faith and their inherent limitations in aspects of religion, beliefs, and practices.

There is always a question that even after this act why the conversion of the Babri Masjid happened in the Hon’ble Supreme Court its judgment in 2009 gave that place to the Hindus. Babri Masjid conflict or the Ayodhya dispute (hereinafter Ayodhya dispute) is a historical conflict between the Hindus and Muslim. The Babri Masjid was built in 1528. The section 5 of the said act explicitly exempts the Ram Janma Bhumi-Babri Masjid and any proceedings related to it. That was the reason that the Hon’ble Supreme had the jurisdiction over the matter. This act also does not apply to ancient and historical monuments, archaeological sites, covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

The main aspect of this act is to prohibit the conversion of the worship place but it arbitrarily sets the date disregarding historical injustice that happened with the people. In the M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors said that this act is a legislative instrument that mandates secularism. Even though section 3 of the act prohibits it, it works as a wall to protect secular and political peace.

The Gyanvapi Masjid controversy is a recent case related to the act. Cases related to the mosque's religious status, alleged discovery of a "Shivalinga," and petitions demanding its conversion into a Hindu temple are juxtaposed with the Act's intent to prevent such disputes. These claims contravene the Act's provisions and violate the section 3 of the act. Additionally, without the consideration of other religions and the act, the lower court passed the order for the survey. Its arbitrary decision led to the communal conflict. The Allahabad High Court affirmed in committee of Management Anjuman Intezamia Masjid Varanasi v Rakhi Singh that the Gyanvapi Masjid as waqf property, and the Supreme Court's emphasis on non-retrogression in the Ayodhya case, are extensively discussed.

The constitutional validity of the act has been challenged on the grounds that Section 4(2) bars judicial review, a principle central to the Indian Constitution’s basic structure. However, some argue this provision reflects judicial restraint rather than an outright bar, as it aims to preserve communal harmony and prevent a flood of litigations over historical religious disputes.

Judicial restraint entails that courts sometimes refrain from interfering in legislative decisions when broader social or political considerations are at play. Critics of the recent Supreme Court decision to entertain petitions against the Act highlight the risk of opening historical disputes like the Babri Masjid case, potentially reigniting social tensions. They argue the Act’s intent was to maintain the status quo of religious sites as of August 15, 1947, preventing misuse of the judiciary for politically motivated proxy litigations.

The caution against such petitions, emphasizing that revisiting centuries-old conflicts under the guise of historical justice risks societal backlash and undermines the judiciary’s long-term credibility. They assert that while courts must do justice in individual cases, they also have a responsibility to safeguard public confidence and avoid being tools for politically charged agendas that could disturb communal harmony.

Let’s consider that if the Supreme Court declared that the act is unconstitutional then this will lead to communal riots. Will disturb the economy of the country and then it can also hinder the country's harmony. Interestingly, in the past the Supreme Court considered the Act as reinforcing secular values and promoting religious equality. This judicial stance focuses on the Act's role in preventing religious conflicts and maintaining communal harmony, though it hasn't fully resolved the ongoing debates about the Act's constitutional implications.

The act has its own firewall and bar the judicial review maybe because to avoid maintaining harmony in India. After the partition the communal riots have escalated.  In 1995 the Gujarat experienced the communal riots that killed people and also incidences of rape happened that might be reason behind the act. The act raises complex questions about balancing the preservation of status quo with religious communities' rights to maintain and recover their sacred spaces. In the case of Ashwini Kumar Upadhyay v. UoI And Ors. the hon'ble Supreme Court has put a stay on the new petition for the conversion or survey of the archaeological places, till the matter is resolved but it will be interesting to see the interpretation of the Supreme Court.  

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