Faizan Mustafa writes | Gyanvapi order: The law cannot resolve vexed religious issues

The five petitioners mosque wanted to pray inside the complex at “Shringar Gauri Sthal”. The matter went to the SC, which transferred it to the district judge.

Many genuinely believed that the Babri Masjid verdict (2019) would mean curtains on demands for conversion of religious places. Even the RSS chief had reiterated several times that the Sangh joined the Ram Janmabhoomi movement due to historical reasons and it would no longer be closely associated with any other demand for the conversion of a mosque to a temple. Simultaneously, he emphasised that Kashi and Mathura do have great religious and sentimental significance for Hindus. He even discouraged the search for shivlings here and there. Ideally, such a positive reaction should have been welcomed by the Muslim leadership and an out-of-court amicable settlement should have been arrived at by the residents of Kashi and Mathura.

Our obsession with the law as a solution to problems — particularly religious and social problems — is the real problem. In the context of both Kashi and Mathura, many Muslims and liberals relied excessively on the Places of Worship Act. Laws are not written in stone and are routinely amended and struck down. Moreover, the law is what the judges say it is.

The 1991 Act was passed when the Ram temple movement was at its peak. The legislative intent was to freeze the religious character of places of worship as on August 15, 1947. The law did exempt the ongoing Babri Masjid dispute from its purview and that’s why the Muslim leadership of that time did not welcome it wholeheartedly. Strangely, today, the same leadership swears by this law. The unanimous five-judge Babri by the SC too made certain positive observations about the 1991 Act — such as, the law is in furtherance of secularism, which is the basic structure of the Constitution, and non-retrogression is the fundamental principle of our constitutional law. The apex court also said that historic wrongs cannot be corrected by recourse to courts. Now, these observations are under challenge in the SC itself. Whether these observations are mere obiter dicta or passing references will soon be decided by a three-judge bench.

Justice D Y Chandrachud — who was also on the Babri bench — while hearing the Gyanvapi petition against the stay of prayers by the civil court of Varanasi had made an extremely important and significant observation that the Places of Worship Act prohibits the conversion of the character, but not its ascertainment, of a place of worship. The Varanasi district judge has now held that “ascertainment” is not prohibited by the 1991 Act. He has explicitly held that the deity in the Kashi Vishwanath complex has been worshipped since time immemorial and once a property is vested in a deity, it cannot be divested. Quoting the Babri verdict, he says that even the destruction of the deity’s property does not change the property’s character. The effect is that a temple remains a temple even after demolition.

It has also been held that the property in dispute is a “temple” within Section 4(9) of UP Kashi Vishvanath Temple Act, 1983. As a matter of fact, until 1993, devotees were allowed to worship on the fourth day of Chaitra in Vashnatik Navratra. The judge also refused to attach much importance to the 1937 judgment in favour of the mosque committee on the ground that Hindus were not impleaded as a party. Just like Babar, it was also argued that Aurangzeb did not create any waqf. Moreover, the bar of entertaining such a dispute under Section 85 of the Waqf Act does not apply to non-Muslims and strangers to the alleged waqf property. This finding would indeed open a Pandora’s box of similar cases.

In a legal battle, the judgment can go either way. A major shortcoming of litigation is that only one party wins. In arbitration, mediation and out-of-court settlements, both parties can emerge winners. Both get something. Even on Ayodhya, Atal Bihari Vajpayee had once suggested that let the mosque be retained but give the other portion of the complex for the temple. Even the high court’s judgment of each party getting one-third of the complex was not acceptable to anyone.

This author has always been an advocate of amity and harmony between religious communities so that the constitutional ideal of “fraternity” is achieved and the rich composite cultural heritage of the nation is preserved. Multi-faith prayer rooms are quite common at Western airports. Why is it absolutely impossible to create some place for the prayer of these five women petitioners without disturbing Muslim prayers? Is there any possibility of considering at least silent prayers?

True, there is possibly no end to the increasing assertion of such demands. Yet, a path different from the Babri dispute is worth exploring. Let a step in the direction of communal amity be not rejected as a surrender by the minority. Let the majority assure minorities about the sanctity of their other places of worship so that an environment of mutual trust is created.

The writer is a constitutional law expert

This article first appeared in the print edition on September 13, 2022, under the title, ‘Not By The Law’