Rights under the Places of Worship Act, 1991

The Places of Worship (Special Provision) Act, 1991, was enacted by the PV Narsimha Rao government. Its key feature is to maintain the "religious character" of places of worship and not interfere by destruction or demolition of any such place used by any religious sect, from August 15 1947. However, except the Ram Janmabhoomi-Babri Masjid dispute because "the dispute is ancient."

The British court was given the responsibility to look into the dispute and come up with a solution. However, the matter became more complicated, and no concrete decision was made. In the 1970s, the Faizabad District Court (now Ayodhya) ordered the Archeological Survey of India to investigate if any temple was buried beneath the mosque and find evidence for the same. The ASI in 1976 submitted a report which mentioned the presence of a temple beneath the mosque. The dispute remained unresolved, and tensions between the two religious sects intensified, resulting in riots and demolition of the Mosque on December 6 1991.

Soon, the Places of Worship Act was enacted to prevent such a situation from taking place. However, recently demand has been raised to abolish the Act as it provides immunities to certain religious sects—for example, the order by the Varanasi District Court to ASI to investigate whether there were any remains of the actual Kashi Vishwanath Temple beneath the Gyan Wapi Mosque built by the Mughal emperor, Aurangzeb. The Uttar Pradesh Waqf Board Secretary, Zafar Farooqi, has challenged the investigation order of the District Court for the violation of the objective of the Places of Worship (Special Provision) Act, 1991.

Rights and their Classification

The types of rights provided in the Act can be analysed section-wise, but first, the types of rights have to be understood. Under Jurisprudence, different theories focus on the concept of rights. The first one is the Will Theory, where jurists like Holland, Pollock, and Austin propound that right gives us control over the will or action of others, which, according to the author, is a rude philosophy. On the other hand, jurists like Buckland and Salmond propound the Interest Theory, which maintains that the function of a right is to further the right-holder's interests. If they fail to do so, then it may be regarded as "wrong."

Austin further modified it, dividing rights into corresponding and absolute rights. Corresponding right is where there are rights but also duties. For example, if one has the right to follow their religion, then, at the same time, they must not interfere with another person following another religion. Absolute right is where the state has to perform a duty exclusively. Like, in the case of murder, it is the duty of the state to find and punish the culprit for maintaining law and order.

The Analysis

The Act is a statutory right provided to all religious groups. Section 3 of the Act bans converting a place of worship or even a tiny section of it. In other words, no person has the right to convert the place of worship of another sect, not even a tiny portion of it. This kind of right is a negative right as it restricts the individual from doing something. However, the section also provides a positive right to the state to maintain the religious character of a place of worship, protecting and preserving equality, secularism, and the basic structure of the Indian constitution.

Right to properia means the right over a property. The Act provides a right to different religious communities to worship at a particular place, making it a fundamental right under Article 25 of our constitution. Various religious groups have a perfect right where the state owes the perfect duty to preserve and protect the place of worship. The religious groups also have a right in rem (a right against the world if their right over the place of worship is violated).

The Act provides public rights to the religious groups under Section 6, which mentions the punishment of a wrong committed in the form of imprisonment or a fine for violating Section 3. The Act also provides a primary right where the place of worship of a religious group has to be protected. With this primary right comes a secondary right where if the place of worship is converted or damaged, the state will take action against those who violated the primary right under Section 6.

Section 5 mentions the exception that is the Ram Janmabhoomi-Babri Masjid dispute. The Act does not affect it, as mentioned earlier. Section 4 of the Act states that any suit or appeal filed or proceeding pending must abate, making it an imperfect right. However, certain conditions are also provided if the conversion happens. A suit is filled with how it should be disposed of, analysed, et cetera—making this provision a contingent right, which depends on future uncertain events.

Ashwini Kumar Upadhyay filed a PIL challenging the provision, which according to him, is violative of Articles 14, 15, 21, 25, 26, and 29. In the case of M Ismail Frooqi vs Union of India (1994), the Supreme court stated that the Act would not deter those who are like-minded. It will prevent the spread of communal violence. Still, for some, the Act was enacted as a model of "pseudo-secularism" and only favoured specific communities. Hence, after the prolonged legal battle of Ayodhya, the next target is Kashi and Mathura.

Ashwini Upadhyay, a Delhi BJP leader and barrister, has challenged the ordinance because it breaches secularism. He has also contended that the August 15, 1947, cut-off date is "arbitrary, irrational, and retrospective" and that it prevents Hindus, Jains, Buddhists, and Sikhs from approaching courts to "reclaim" the sites of worship that were "invaded" and "encroached" upon by "barbaric fundamentalist invaders."

Even before the law was established, the BJP argued that the Centre lacked the authority to regulate "pilgrimages" or "burial grounds," which are on the state list. However, the government stated that it could enact this law using its residuary jurisdiction under Entry 97 of the Union List. Entry 97 grants the Centre residuary rights to legislate on issues not covered by any of the three lists. Another objection levelled against the statute is that the cut-off point is the date of independence, implying that the status quo established by a colonial power is deemed final.

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