"It is only recently that these things are coming up," advocate Subhash Gupta, appearing for the Archaeological Survey of India (ASI) told a Delhi court, on Wednesday, 25 May, as he drew attention to the fact that the Qutub Minar was built around eight centuries ago (between the 12th and 13th century).
Gupta's remarks came in response to a plea challenging a Civil Judge order dismissing a suit which alleged that the Quwwat-Ul-Islam Masjid situated within Qutub Minar Complex was built in place of a temple complex and sought restoration of the same.
The original suit had sought 'restoration' of 27 temples that were alleged to have been destroyed to construct the mosque.
The ASI has opposed the 'restoration' bid, stating in their affidavit filed in the court that changing and altering the existing structure would be a clear violation of the The Ancient Monuments and Archaeological Sites and Remains (AMASR) Act, 1958 and thus should not be allowed.
Prior to this, Civil Judge Neha Sharma had rejected the plaint under Order 7 Rule 11(a) of Civil Procedure Code (CPC), stating that it was barred by the provisions of the Places of Worship Act 1991.
This 1991 Act – which has been in the news recently because of its relevance to the Gyanvapi Mosque controversy and case in Varanasi – which prohibits conversion of any place of worship into anything different from the religious character of the place as it was on 15 August 1947.
Who Said What: Submissions in Short
PLAINTIFFS
Challenging the Civil Judge’s order, the Hindu plaintiffs have submitted in the district court that
They want restoration of deities and Pooja to be offered there
The Civil Judge's order denies the Constitutional and fundamental right of Hindu community under Article 25 (Freedom of conscience and free profession, practice and propagation of religion)
That the government has notified Qutub Minar as a protected monument and thus, the Places of Worship Act does not apply
The plaintiff's contention is that the present suit cannot be barred under the Places of Worship Act 1991 as Section 4(3)(a) of that Act excludes ancient, historical monuments or archaeological sites or remains covered by the AMASR Act.
"Every monument governed by Monument Act is exempted from application of Places of Worship Act. Nobody can dispute this. My test is on exclusion. When Act exempts the application of Places of Worship Act, how the suit is dismissed on this basis?" Hari Shankar Jain, one of the appellants in the case, told the court on Tuesday.
He also pointed out that Section 16 of the AMASR Act, 1958 says: "A protected monument maintained by the Central Government under this Act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character."
ARCHEOLOGICAL SURVEY OF INDIA
The ASI — which is, incidentally, the government agency (attached to the Ministry of Culture) responsible for archeological research and preservation of monuments of cultural and historical significance — has submitted that what the plaintiff’s seek (a decree of permanent injunction) cannot be passed.
This is because change and alteration of the existing structure is not permissible as per the provisions per the provisions of AMASR Act, 1958 and AMASR Rules, 1959.
The ASI has said that to agree to any person’s claim of a fundamental right to worship in the Qutub Minar — a central protected monument — will be in contradiction to the provisions of the AMASR Act.
According to LiveLaw, the ASI conceded that architectural remnants and images of Hindu and Jain deities were reused for the construction of the complex, but also pointed out that "Qutab Minar is not a place of worship and since the time of its protection by the Central Government (1914), Qutab Minar or any part of Qutab Minar was not under worship by any community."
“The basic principle of protection /conservation is not to allow starting of any new practice in a monument declared and notified as a protected one under the Act. Revival of worship is not allowed wherever it is not practiced at the time of protection of a monument."Architectural Survey of India to the district court
But When a Monument is Protected Under AMASR Act, What is the Relevance of the Places of Worship Act?
Here's what we know so far...
The civil judge rejected the suit, citing the Places of Worship Act, 1991 as a bar on the same
The ASI has claimed that the monument is protected under the AMASR Act and therefore cannot be turned into a place of worship for Hindus and so the appeal must be dismissed
The plaintiffs have challenged the civil judge's order on the ground that the Places of Worship Act does not apply in their case because the monument is protected under the AMASR Act (and hence exempted under section 4(3) of the 1991 Act)
An obvious question that may, thus, follow is: If both the plaintiffs and the ASI agree that the complex is protected under the AMASR Act, why does the ASI say that the appeal against the Civil Judge's order, citing the Places of Worship Act, should be dismissed?
In order to answer this we need to look at what the two Acts say and what the civil court pointed out in their order, citing the top court's Ayodhya judgment.
THE PLACES OF WORSHIP ACT
The Places of Worship Act (1991) expressly bars conversion of any place of worship into anything different from the religious character of the place as it was on 15 August 1947 (with the exception of the Ayodhya dispute), as stated in Section 3.
It also imposes a bar on the institution of fresh suits or legal proceedings seeking any such conversion.
Conversion, under section 2(b), “with its grammatical variations, includes alteration or change of whatever nature.”
The objective of the Act was 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."
While Section 4(1) of the Act states that "the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day,” Section 4(3)(a) says that it will not apply to "any place of worship…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.”
WHAT DOES THE AMASR ACT SAY ABOUT PLACES OF WORSHIP?
Among other things, Section 16 of the ASAMR Act provides for “protection of place of worship from misuse, pollution or desecration”
According to this any monument maintained by the Central Government under the ASAMR act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character.
Section 16(2) says that the collector shall make due provision for protection of the monument or any part of it from pollution or descecration by:
(a) prohibiting the entry therein, except in accordance with the conditions prescribed with the concurrence of the persons, if any, in religious charge of the said monument or part thereof, of any person not entitled so to enter by the religious usages of the community by which the monument or part thereof is used, or (emphasis added)
(b) taking such other action as he may think necessary in this behalf
'Read Both Laws Harmoniously': Civil Judge
The Civil Judge, in her order, noted that the plaintiffs have averred that Section 16 of the Act, and observed that the section has to be read in consonance with the Places of Worship Act.
The court observed that the plaintiffs’ contention that Section 4(3)(a) of Places of Worship Act excludes a monument covered by the AMASR Act and hence the present suit is barred under the Places of Worship Act "would frustrate the purpose of the Act."
The court said the exemption has to be seen in the larger context of the 1991 Act.
Thus, the judge opined that while the historical monument cannot be used for some purpose which runs counter to its nature as a religious place of worship, it can always be used for a purpose not inconsistent with its religious character.
“Hence, in my considered opinion, once a monument has been declared to be a protected monument and is owned by the Government, then the plaintiffs cannot insist that the place of worship must actually and actively be used for religious services”Neha Sharma, Civil Judge
The Civil Judge also said that “harmonious interpretation of both the statutes is required to give full force to the objective behind the Places of Worship Act, 1991."
Stating that “nobody has denied wrongs were committed in the past but such wrongs cannot be the basis for disturbing peace of our present and future”, the judge quoted the constitution bench of the Supreme Court in the Ayodhya verdict as saying:
“The Places of Worship Act is intrinsically related to the obligations of a secular state…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.”
Are the Laws Really in Conflict With Each Other?
Simply put, the Places of Worship Act was brought in by the Parliament so that the history of India — rife with cultural and sectarian conflicts as it saw several tectonic shifts in power — should not be exploited to give birth to fresh conflicts in the future.
The apex court had, in its Ayodhya judgment, noted that they viewed “this Bill as a measure to provide and develop our glorious traditions of love, peace and harmony.”
Seen from this lens, the Civil Judge's attempt to interpret the laws harmoniously does appear reasonable.
However, that kind of harmonious construction approach doesn't even need to be followed here (even though it may be relevant in other cases), as the ASI's submissions demonstrate.
This is because, both to a certain extent, offer protection to the character and structure of a monument as frozen during a fixed period.
In case of 1991 Act, the character is to be frozen as it was on 15 August 1947. In case of the 1958 Act, the same is to be frozen as on the date the Act was brought into existence or if it became a protected monument before the Act was implemented, then on the date that it did so.
"When a monument comes under ASI under 1958 Act, there is period of objections for 60 days. They are considered. It is for this reason, we have several monuments in country which are and which are not places of worship," the ASI's lawyer had further informed the court.
In case of Qutub Minar, the ASI has stated that no community has used the monument as a place of worship since 1914. Therefore, facially, there is little merit in the argument that a part of it may be used for worship by any community now. There is no appreciable conflict between the two laws in this case at least.
As a result, it is irrelevant that Section 4(3) of the Places of Worship Act says it cannot apply to the site because it is an ancient monument covered under the ASAMR Act – because the Places of Worship Act doesn't need to be used to bar the suit.
It is also irrelevant that Section 16 of the ASAMR Act says that a monument which is a place of worship or shrine cannot be used in a manner inconsistent with its character – because the site has not been used as a place of worship at least since 1914 (when it was designated as a protected site), and even before that.
This means that even if the Civil Judge's approach and reason for rejecting the suit is found to be inapplicable, the Hindu devotees still don't have a case.
The potential conflict between the two laws, however, will survive till a decision is arrived at by a high court or the Supreme Court.
(With inputs from LiveLaw.)
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