Krishna Janmabhoomi: How Ayodhya Judgment Protects Mathura Mosque, and Others

BJP leaders call for repeal of Places of Worship Act, 1991, but SC judgment makes this extremely difficult.

The temple and the mosque at the heart of the controversy in Mathura, right next to each other.

(Photo: The Quint)

As the Uttar Pradesh (UP) state Assembly elections draw near, temple politics have come to the fore once again, with Prime Minister Narendra Modi's inauguration of the Kashi Vishwanath Corridor in Varanasi the latest occasion for the Bharatiya Janata Party (BJP) to stamp its credentials on this front.

In recent days, the party's attempts to rake up temple politics have also focused on Hindu right wing groups' long-standing demand for the Shahi Idgah mosque in Mathura to be handed over to Hindu groups because of the claim that it is built on the site of the birthplace of the Hindu deity, Lord Krishna.

UP Deputy Chief Minister Keshav Prasad Maurya set the ball rolling with a tweet on 1 December, saying that with grand temples under construction in Ayodhya and Kashi (Varanasi), "Mathura ki teyari hai (preparations are on for Mathura)."

This was followed by a comment by UP Minister of State for Parliamentary Affairs Anand Swarup Shukla saying a few days later that the mosque in Mathura "hurts the eyes of every Hindu." As a result, he continued,

"The Muslim community should come forward and hand over the white structure located in the Shri Krishna Janmabhoomi complex in Mathura to Hindus… Time will come when this work will be completed."

Calls for Repeal of the 1991 Places of Worship Act

Of course, there is a clear and obvious stumbling block to the realisation of any such plans for Mathura: the Places of Worship (Special Provisions) Act 1991.

• Under this law, there can be no conversion of a place of worship of one religion to a place of worship of another (Section 3).

• The law also prohibits any legal cases from being instituted regarding the ownership or status of a place of worship that has been in existence since before 15 August 1947 (Section 4).

• Any legal case which was launched before the law came into force was held to stand abated as well, unless it dealt with a situation where the religious character of a place of worship was changed after 15 August 1947.

• The Ram Janmabhoomi-Babri Masjid dispute in Ayodhya was identified in the law itself as an exception (Section 5). Apart from that, however, the law clearly forestalls any attempts to change the status of pre-Independence religious structures in the country.

The law therefore clearly precludes the claims of Hindu right wing groups over other sites where they say mosques were built where temples once stood, like the Shahi Idgah mosque in Mathura and the Gyanvapi mosque in Kashi (Varanasi).

In October 2020, a Mathura district court dismissed a civil suit asking for the land where the Shahi Idgah mosque stood to be handed over to a Hindu trust set up in the name of Lord Krishna. The court cited the Places of Worship Act, 1991 as a bar on the case, and said there were no arguments for reconsideration of the legal position. Other civil cases making similar pleas are still being heard by the Mathura courts and face the same hurdles.

This explains, therefore, the most recent set of comments about the Mathura situation, which go beyond mere rhetoric.

Speaking to the press on 6 December, the anniversary of the destruction of the Babri Masjid in Ayodhya in 1992, BJP MP Ravindra Kushwaha said that the BJP has had a "clear view" regarding the temple issue in Mathura from its early days, and that the central government could therefore repeal the Places of Worship Act.

“While taking note of farmers’ protests, agri laws were withdrawn. Similarly, the Modi government can withdraw this Act also,” Kushwaha told reporters.

This idea of repealing the law was also floated in Parliament itself by BJP Rajya Sabha MP Harnath Yadav during Zero Hour on 9 December:

“The meaning of this law is that it basically legitimises forcible occupation of places of worship such as Sri Krishna Janmabhoomi and others by foreign invaders… this law discriminates between Shri Ram and Shri Krishna whereas both are avatars of Lord Vishnu. This discriminates against Hindus, Buddhists, Jains and Sikhs. I request that it be repealed as soon as possible.”

Harnath Yadav speech in Zero Hour, Rajya Sabha on 9 December as transcribed by The Indian Express

These growing calls for a repeal are not the only attempts being made to undermine the 1991 law. BJP leader Ashwini Kumar Upadhyay filed a Public Interest Litigation (PIL) in March this year challenging the constitutionality of the Places of Worship Act, which the Supreme Court issued notice to the Centre on.

However, both these lines of attack could be countered by an unlikely source: the Supreme Court's November 2019 judgment in the Ayodhya case.

What Did the Ayodhya Judgment Say About the 1991 Act?

Since the Ram Janmabhoomi was expressly excluded from the 1991 Act, it was not at issue per se in the Ayodhya case, where it had to be decided who had the legal title to the disputed site.

However, as the case was technically an appeal against the Allahabad High Court's decision on the matter, the Supreme Court did have to address the observations of Justice DV Sharma of the high court about the 1991 Act, in which the judge had suggested that the law did not apply to cases where there was a dispute which had begun before 1991.

These observations could have potentially opened the door to a case on the Mathura Krishna Janmabhoomi, if they'd been allowed to stand.

But the Supreme Court took a firm view, holding that Justice Sharma's suggestions ran contrary to the 1991 law and were "erroneous."

To arrive at this conclusion, the apex court examined the text of the 1991 law, its statement of objects and reasons, the discussions around it in Parliament, and the position of secularism as one of the basic features of the Constitution.

The five-judge bench of the Supreme Court went on to say that the Places of Worship Act 1991 "protects and secures the fundamental values of the Constitution."

The judges observed that secularism is one of the basic features of the Constitution, as previously affirmed by a constitution bench of the Supreme Court in the SR Bommai case. And the 1991 law was a vital step by the government to "protect the secular features of the Indian polity."

"The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution."

Supreme Court in Ayodhya Judgment, para 83

The rationale for the cut-off date of 15 August 1947 in the 1991 law, which has been criticised by Hindu right wing groups and has been specifically challenged in Ashwini Upadhyay's PIL, was also clearly explained by the judges, with reference to the discussions in Parliament when the law was enacted:

"In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered."

Supreme Court in Ayodhya Judgment, para 82

On the basis of these findings by a five-judge bench, it is difficult to see how Upadhyay's PIL challenging the constitutionality of the 1991 Act could possibly succeed, even though the court has agreed to hear it.

Perhaps most importantly, the Supreme Court in the Ayodhya judgment also clarified that the 1991 act was a legislative intervention to ensure "non-retrogression" (para 82), which becomes very important in the context of any move to repeal it.

What Is Non-Retrogression and Why Is It Important?

The concept of non-retrogression was explained by former Chief Justice of India (CJI) Dipak Misra in his judgment in the Section 377 case:

"The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise."

Para 189 of CJI Dipak Misra's judgment in Navtej SIngh Johar case, at page 117

This doctrine comes about because there is supposed to be a progressive realisation of rights in India, since we have a dynamic, not a static Constitution. This means that there cannot be a regression of rights, and that society must move forward rather than backward.

The Places of Worship Act 1991, the Supreme Court held in the Ayodhya judgment, "speaks to our history and to the future of the nation."

"Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future."

Supreme Court in Ayodhya Judgment, para 83

Any attempt to repeal the Places of Worship Act, 1991 would potentially violate the doctrine of non-retrogression as it would be a regression from the protection granted to places of worship that have existed for long periods of time and to communities which have worshipped there for the last several decades (if not centuries).

Not granting this protection means a constant threat to the enjoyment of rights of worship of a community, whether a minority or majority. This is incompatible with a secular nation, where all citizens have the right to practise the religion of their choice.

Justice Misra's wording of the doctrine does seem to cover any measure by the government, including the repeal of a law which advanced the values of the Constitution.

At the same time, it could be argued that a repeal of a law which does not in itself impact the provisions of the Constitution cannot be the subject of judicial review, especially since much of this comes down to secularism as a basic feature of the Constitution, rather than one of the fundamental rights itself.

As a result, the Ayodhya judgment isn't necessarily a slam-dunk argument against repeal of the Places of Worship Act, 1991.

However, it certainly provides a solid foundation to argue against any such repeal, on sociopolitical as well as legal grounds, and thereby is an important protection for not just the Shahi Idgah mosque in Mathura, but other such places of worship across the country as well.