November 11, 2023
“Law and justice are not always the same. When they aren’t, destroying the law may be the first step toward changing it.“
– Gloria Steinem
INTRODUCTION
With frequent calls for the reclamation of religious structures, the relevance of the Places of Worship Act, 1991 [hereinafter, “the Act”] is revitalized time and again. In his remarkable observation during the tabling of the Bill in September 1991, Sh. Ram Vilas Paswan had identified the Bill as a step towards ensuring sustained peace in the country which would otherwise be hampered by a plunge in the history of communal conflict. Thus, the Act was a legislative attempt to bring an end to this chapter of communal reclamation.
Recently, the Places of Worship (Special Provisions) Repeal Bill, 2022 was listed to be introduced as a private member bill in the Upper House of the Parliament when Congress MP Naseer Hussain objected to the introduction of the Bill. While citing the pending writ petition challenging the constitutionality of the Act on the ground that it is violative of the Fundamental Rights of the citizens, Hussain highlighted that the matter is sub-judice and argued that it is against the convention of Parliament to take up matters under judicial consideration. Hussain rekindled the debate about the constitutionality of the Act and argued, “This bill is unconstitutional as it affects the secular nature of our Constitution striking at the very roots of basic structure doctrine.”
THUS SAYS THE ACT
Section 3 of the Act imposes a bar upon conversion of a place of worship out of the religious character that it possessed on the 15th of August, 1947.[i] Section 4 further declares that no court of appeal can initiate proceedings concerned with the conversion of the religious character of a place of worship in addition to bringing to an end any pending proceedings. Section 4(2), however, has excluded complexes converted after 15th August 1947 from the bar on the institution of suit. Section 5 exempts the Rama Janmabhoomi from the application of the Act.[ii] Before its enactment, appeal to judicial forums was a right available to the affected communities thus posing a question as to whether it is within the constitutional framework to mar a community of their pre-existing right.
This legislation is challenged on two grounds in this article: firstly, the right to judicial remedy is a fundamental right and, it is argued that the bar on appeal is unconstitutional and violates the basic structure doctrine, and secondly, this legislation was passed in violation of the ‘principle of non-retrogression’, which bars any legislation that retreats from a previously available right, and thus, led to defeating the ‘legitimate expectation’ of the indigenous communities.
A TAKE ON CONSTITUTIONALITY
Indigenous communities have been at the receiving end of injustice in Medieval and British India. Well-documented historical events highlight the unjust and brutal trampling down of indigenous faith systems and their places of worship which form an essential part of communitarian dignity.[i] Thus, the Act needs to be tested on the cornerstone of Article 13(1) of the Indian Constitution which establishes the unconstitutionality of legislation if it is violative of fundamental rights. Moreover, if the legislature takes away or abridges the previously available rights through the enactment, its actions are construed to be unconstitutional, and in violation of the Basic Structure Doctrine that renders the legislature incompetent to take away the fundamental rights.
BREACH OF FUNDAMENTAL RIGHTS?
Section 4 of the Act, which bars any appeal or proceeding in any tribunal or court for such conversion, not only infringes upon the access to justice for the communities whose religious dignity and freedoms were repressed before independence, but also questions faith in the judiciary as an institution that can bring justice to communally-charged conflicts. The Supreme Court, while identifying “access to justice” as a fundamental right in the case of Anita Kushwaha v. Pushap Sudan, noted, “The Citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both concerning equality before the law as well as equal protection of laws.”
In the case of Maneka Gandhi v. Union of India, the court had laid down the “direct-effect test” which declared that the inevitable outcomes, and not the objective of the legislation, shall be tested when judging the breach of Fundamental Rights. Adding to the violation of the right to access the judiciary, the bar imposed by the Act also leads to discriminatory outcomes for indigenous communities who faced mass destruction of their prominent places of worship. The Act, by causing the inability of indigenous communities to seek judicial recourse to disputed places of worship, such as the Gyanvapi Complex, has caused prejudiced undermining of communities’ right to access justice and judicial mechanisms and therefore is in violation of Fundamental Rights.
THE DOCTRINE OF ‘NON-RETROGRESSION’ AND LEGISLATIVE INCOMPETENCE
As a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), in line with Article 2 of the Covenant, India has committed “to achieving progressively the full realization of the rights”. In the case of Navtej Singh Johar v. UoI (2018), the SC relied on the aforesaid doctrine of “non-retrogression” or the “Doctrine of Progressive Realisation of Rights” which lays down that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights under the Constitution or otherwise. Additionally, in the case of Anushka Rengunthwar vs. Union Of India (2023), the SC iterated that legislation in the retrogression of constitutional rights also defeats the doctrine of ‘legitimate expectation’ of an individual to have an entitlement to consistent past practice. It laid down that the doctrine of ‘legitimate expectation’ imposes, in essence, a duty on the public authority to act fairly by taking into consideration all relevant factors relating to such ‘legitimate expectation’.
The right to access justice is an inalienable part of the Constitution, and the prominence awarded to Article 32 by the founding fathers of the Constitution is a testament to the same. Before the enactment of the Act, the courts of appeal were open for the institution of suits pertaining to the conversion of places of worship. For instance, the first civil case for the ownership of Krishna Janmbhoomi was filed in 1964, therefore, contrary to popular opinion, the enactment has led to what the Supreme Court called to be a denial of equality and an “inability” to access adjudicatory mechanisms.
In the decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service (1984), it was noted that “an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy.”[iii] The enactment of the Places of Worship Act of 1991 completely barred the rightful recourse to the judicial trial of such hybrid complexes that retain their founding features and thus, runs counter to the non-retrogression principle. Consequently, the Act defeats the legitimate expectation of the indigenous communities to have access to their prior available fundamental right to access justice through judicial recourse.
SOCIO-LEGAL ANALYSIS
INC’s objection to the Private Member Bill relied on and reiterated the apex court’s observation in the Ram-Janmabhoomi Judgement, that held that the Act “enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution.” It added that the Act, “imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution” and is a “legislative intervention which preserves non-retrogression as an essential feature of our secular values.”
However, scholarly position reveals that for postcolonial societies, the reclamation of cultural authenticity is one of the most prominent political and social concerns. It is only through constitutional recourse that such decolonizing attempts must be streamlined. Decolonial scholars often associate conflict of culture and identity with experiences of dominating and dominated identities wherein the latter seeks recourse to regain their authentic history.
India has been a victim of two significant waves of colonialism and several communal vivisections; therefore, the Act’s outcomes inevitably lead to barring judicial recourse primarily for dominated communities. Reasoning subscribed to by the Supreme Court and the INC thus ignores the existence of two distinct types of places of worship in India, i.e. places marking dominance and places marking subjugation. By virtue of this distinction, conflicted complexes such as the Gyanvapi would always be seen as a mark of conflict. Thus, the bar on legal recourse amplifies the possibility of political gains through non-secular interventions. Moreover, contrary to the court’s observation, the Act retrogrades one’s access to courts based on faulty notions of history thus violating the Constitution’s commitment to justice. Legislations that aren’t based on society’s specific experiences, that for pre-independence India translates to iconoclasm as a state policy, and rather rely on alien interpretations of constitutional principles, lead to a society that H.L.A. Hart opined to be, “deplorably sheeplike that might end up in a slaughterhouse,” for such legislations tend to create political heroes out of those who deviate from them.
THE WAY FORWARD
Subscribing to an unprecedented interpretation of the Act, the SC during the hearing of the Gyanvapi-Kashi Vishwanath case observed that the Act does not impose a bar on the ascertainment of a religious character. This observation testifies SC’s acknowledgment of the complexity of religious structures in India having hybrid characters. In a country with such structures, in addition to historically unjust episodes of destruction, judicial recourse provides for a constitutionally sound and politically secular approach to dispute resolution. The Places of Worship Act violates the basic structure doctrine and leads to the retrogression of fundamental rights. Our Constitution firmly commits to religious freedoms as well as equal protection of rights; fulfilment of these commitments is impracticable if specific historical experiences are not accounted for. Thus, instead of banning the adjudicatory recourse, the primary objective of the parliament must be to lay down evidentiary procedures for effectively ascertaining the religious character of disputed complexes. This will ensure commitment to secularism while ensuring that instead of becoming political baits, such disputes are resolved through judicial mechanisms. To resolve the potential arbitrariness of such ascertainment, an elaborate laying down of procedures shall go a long way. In addition, the scope of the Act must be restrained to complexes that do not have any hybrid or conflicting features to ensure minimal breach of the indigenous community’s right to seek restorative justice. Devoid of amendments proposed, the provisions of the Act collectively lead to unconstitutional outcomes and contradict the constitutional protection granted to India’s citizens.
[i] Press, Oxford University. “Council of Civil Service Unions and Others V Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.” Council of Civil Service Unions and Others V Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
[ii]Miers Elliot, Sir Henry. The History of India, as Told by Its Own Historians; the Muhammadan Period. 2012.
[iii] Section 3: 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.
[iv] Section 5: Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.
The author is a third year law student at National Law University, Punjab
Image Credits: Gauri Lankesh News
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