What is the right way to reclaim occupied dharmic sites?
An aerial view of the Kashi Viswanath Dham Corridor in Varanasi on the eve of its inauguration in December 2021 (Photo: AP)
ON JANUARY 22, 2024, THE pran-pratishtha (consecration) of Shri Ram Lalla was performed at the Shri Ram Janmabhoomi in Ayodhya. As a first-hand witness to the ceremony, my thoughts were pulled in two different directions—first, of course, the euphoria of being able to witness the reclamation of a Dharmic sacred space after close to five centuries of occupation and dispossession and 160 years of legal battle (the first FIR was lodged by Mohd Salim on November 30, 1858 against Nihang Sikhs who had installed their symbol and inscribed ‘Ram’ inside the erstwhile disputed structure); and the second was the continued occupation and dispossession of thousands of such Dharmic holy sites with Kashi and Mathura being mere exemplars of this unfortunate status quo. I use the words “mere exemplars” consciously and responsibly because Ayodhya was, and Kashi and Mathura are, but non-exhaustive examples of the status of Dharmic Places of Worship (PoW) as Prisoners of War (PoW). After all, there are thousands of such occupied Dharmic sites which the descendants of the original owners have a fundamental right to reclaim but for the perceived bar imposed on such a right by the Places of Worship Act, 1991 (the PoW Act). The reasons for my use of the words “perceived bar” will become clear from the ensuing discussion. In an interview to Outlook in October 2022, I had highlighted that there are inherent contradictions in the PoW Act and that it “is either a very poorly thought-out legal solution or a very clever political move”. In this piece, I will dilate on this arguable position.
The PoW Act has only seven Sections, of which I will discuss the relevant ones. The preamble to the Act reads as under:
An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto. [Emphasis added]
To paraphrase, the object of the Act is to preserve the “religious character” of “any place of worship” as it existed on August 15, 1947, and to prohibit the “conversion” of such religious character. Since the word “prohibit” can be presumed to be self-explanatory, one needs to understand the purport of the Act when it uses the terms “place of worship” and “conversion”. Section 2(c) of the Act defines “place of worship” as follows:
(c) “place of worship” means a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called. [Emphasis added]
It is evident that the scope of protection of the Act against conversion of religious character extends to religious institutions of all hues. However, the operative phrase, in my view, is “any religious denomination or any section thereof”, which would become evident from a reading of Section 3. Pertinently, the Act does not define “religious denomination”, nor does the Constitution define it despite using it in Article 26. What constitutes a religious denomination has been expounded upon in judgments of the Supreme Court, notably in The Commissioner Hindu Religious Endowment Madras vs Shri Laxmidhar Tirtha Swamiyar of Shirur Mutt (1954). Relying on the definition of “denomination” in the Oxford dictionary as it existed then, the Supreme Court held that a religious denomination means a “collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name”. In other words, a religious denomination is typically understood as a subset/sect of a faith, but does not represent the entirety of the faith itself. Understanding this is crucial to the discussion at hand because it stands to reason that the said definition of religious denomination applies equally to its use in the PoW Act.
As for the definition of conversion in the PoW Act, Section 2(b) defines it as under:
(b) “conversion”, with its grammatical variations, includes alteration or change of whatever nature;
It could be argued that conversion does not include reclamation/reconversion since the definition does not clarify it. Coming to the prohibition on conversion of places of worship in Section 3, it reads as follows:
As a country that voted for UNDRIP, Bharat cannot ask for return of the Kohinoor from Britain on the one hand and, on the other, defend a law that prevents internal repatriation citing secularism
What is the import of this bar? The provision bars conversion of 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. As repetitive as it sounds, the point being made is that the clear language of Section 3 does not impose a bar on conversion of any place of worship of any religion to a place of worship of a different religion. Instead, it imposes a bar on inter-denominational conversion within the same religion, and inter-sectarian conversion within the same religious denomination. Illustratively, in the context of Hindu religious denominations, this means Section 3 prohibits conversion of a Vaishnavaite place of worship into a Shaivaite place of worship, or conversion of a place of worship from one Vaishnavaite sect to another Vaishnavaite sect. Simply put, it could be argued that the reclamation of a so-called Mosque (of one religion) as Mandir (of another religion) is not barred by Section 3 since, one, reclamation may not be conversion, and, two, such reclamation is neither inter-denominational within the same religion, nor inter-sectarian within the same religious denomination.
Assuming the above line of interpretation is not acceptable to the Indian brand of secularism, Section 4 does not help the secularist. Here is Section 4:
(2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority:
Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,—
(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act;
(c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement;
Although the object of Section 4 is to preserve the religious character/identity of a place of worship, it cannot be read independent of Section 3 since the bar on conversion of religious character is contained in Section 3. Therefore, the use of the words “religious character” in Section 4, too, would need to be interpreted as “religious denominational character”. Assuming that even this line of argument does not meet with secular approval, Section 4(3) provides an exemption to Sections 4(1) and 4(2). It says that the requirement of preservation of religious character of a place of worship as it existed on August 15, 1947 does not apply if the same place of worship is an “an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force”. This takes us to the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (the 1958 Act).
Section 2 (a) of the 1958 Act defines “ancient monument” as under:
(a) “ancient monument” means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years, and includes―(i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of, an ancient monument; [Emphasis added]
A plural and polytheistic society that has suffered religious oppression does not deserve to be told that it must sacrifice the right to peaceful reclamation at the altar of secularism
Section 2 (d) of the 1958 Act defines “archaeological site and remains” as under:
(d) “archaeological site and remains” means any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than one hundred years, and includes―(i) such portion of land adjoining the area as may be required for fencing or covering in or otherwise preserving it, and (ii) the means of access to, and convenient inspection of, the area; [Emphasis added]
Therefore, if a monument or site is 100 years old or more, it constitutes an ancient monument or an archaeological site and such monument/site would not be affected by Sections 4(1) and 4(2) of the PoW Act. Applying this position, if someone is able to establish that a particular occupied site is more than 100 years old, the requirement of preservation of religious status quo under Sections 4(1) and 4(2) would not apply to such a site.
Assuming this line of argument too does not humour the secularist worldview, the constitutionality of the PoW Act is open to question in view of Section 5 of the Act:
The import and object of Section 5 is that the PoW Act would not apply in its entirety to Shri Ram Janmabhoomi. This is precisely why the legal proceeding in relation to the ownership of the site was allowed to continue even after the coming into force of the PoW Act. The question that then arises is: Why was such an exemption made only in relation to Ayodhya while denuding the claimants of other occupied Dharmic sites, not just Kashi and Mathura, of the basic legal remedy to seek reclamation through a peaceful and evidence-based judicial process? How can owners of property, especially religious property, be deprived of their rights to seek redress through courts?
The catch-all defence of secularism does not cut ice because a plural, polytheistic, and moorthi-worshipping society that has suffered the most excruciating religious oppression and genocide at the hands of monochromatic and anti-plural worldviews, does not deserve to be told that it must sacrifice even the right to peaceful reclamation at the altar of secularism. When the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP 2007), specifically Article 11(2), expressly requires countries to provide effective mechanisms for restitution to indigenous communities of “cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs”, how can Bharat, as a society that has suffered two waves of monochromatic colonisation, justify the continued existence of the PoW Act? As a country that voted in favour of UNDRIP, surely Bharat cannot ask for the return of the Kohinoor from Britain on the one hand and, on the other hand, defend a law that prevents internal repatriation citing secularism. Wouldn’t that amount to speaking from both sides of the mouth on the same question of principle? Secularism does not even occupy that high a position in our constitutional pantheon, assuming it was ever meant to be expressly included or read into the document. Also, as I have written elsewhere, the superfluous discussion on secularism in the context of the PoW Act in the Ayodhya judgment of the Supreme Court in 2019 has no precedential value and does not remotely come in the way of a constitutional challenge to the PoW Act. It is this kind of blinkered and history-agnostic application of secularism that has led to widespread disaffection towards the value. If history is relevant in the context of social justice and reform, it must be equally relevant to the issue of restitutive justice.
Why was an exemption made only in relation to Ayodhya by the PoW Act while denuding the claimants of other occupied dharmic sites, not just Kashi and Mathura, of the basic legal remedy to seek reclamation?
It must be appreciated that what is not being sought or expected is summary repatriation of occupied Dharmic sites without evidence and trial. Instead, the reasonable ask is to be given an opportunity to prove the claim of Dharmic communities in court. In the absence of a Truth and Repatriation Commission, this is as reasonable and constitutional an expectation as it gets. Perhaps, it is time to introspect before it is too late. May Shri Ram, the epitome of Dharma, guide the conscience of keepers of Dharma, the civilisational morality of Bharat. Isn’t that why the motto of the highest constitutional court of the land is Yato Dharmastato Jayah?