A PIL that opens wounds

The public interest litigation (PIL) filed in the Supreme Court challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991, has the potential to reopen the chapter of decades of Hindu-Muslim hostility, to which a closure of sorts was provided by a person no less than Prime Minister Narendra Modi.

His assertion after the Bhoomi Pujan on August 5, 2020, in Ayodhya, was reiterated by the Rashtriya Swayamsevak Sangh chief, Mohan Bhagwat. Although they spoke on different occasions from platforms distinct from one another, the summary of their assertions was analogous: A legally permitted construction of the Ram temple, with official handholding, was enough to rectify the 'perceived wrong' done to the Hindus in history.

Their statements respected the sentiments contained within the apex court's judgement of November 9, 2019, that awarded the disputed property to the Hindus. The five-judge bench, headed by the then Chief Justice of India, Ranjan Gogoi, awarded the land to the Hindus despite noting the criminality of the act that destroyed the Babri Masjid. That judgement, which came just days before Justice Gogoi retired, laid down the legal principles on the lingering disputes raised over the decades by affiliates of the RSS.

The landmark, albeit debatable, judgement declared that the Places of Worship (Special Provisions) Act, 1991, imposed a "positive obligation" on the government to "maintain the religious character of every place of worship as it existed on August 15, 1947, when India achieved independence from colonial rule."

Given this backdrop, the decision of the apex court bench comprising outgoing Chief Justice of India S A Bobde (he retires in April) and Justice A S Bopanna, to issue notice to the Centre, while admitting the petition, is perplexing. Lest it be forgotten, the Ayodhya verdict bench had categorically affirmed that the 1991 legislation passed by Parliament after the mosque's demolition triggered countrywide communal riots, "enforced a constitutional commitment (on the State) and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution."

Despite the unambiguous wording of the court's understanding of the importance of the 1991 Act, the petitioner claimed that back then, the Centre had created an "arbitrary, irrational, retrospective cut-off date", and that the government "barred the remedies against illegal encroachment on the places of worship and pilgrimages and Hindus, Jains, Buddhists, Sikhs, cannot file suit in the High Court." As a result, "illegal barbaric acts of the invaders will continue in perpetuity."

The PIL and the two-judge bench hearing it did not take note of the five-judge bench's viewpoint: Although Indians are aware of their history and the need to confront it, wrongs in the past cannot be remedied if people take the law in their own hands. Independence was a watershed moment to heal the wounds of the past and this was recognised by Parliament and provided the right cut-off date to leave past animosity behind. By enacting the Act, lawmakers agreed that history and its wrongs cannot be used as instruments to orient the present and the future.

There is no ambiguity that the Ayodhya issue, and related mosque-temple issues, played the central role in the rise of the BJP from a party on the margins to the principal party of governance in the country. Consequently, the fact that the petitioner is closely associated with the BJP gives rise to suspicion that Modi-Bhagwat's assertion, that "the wait of centuries" had ended was yet another instance of double-speak.

In allowing the petition, the Supreme Court has opted to re-examine the constitutionality of an Act of Parliament that provided a framework for the country to move ahead and focus on more consequential priorities, such as social tranquillity and economic growth. The government's response to the notice served on it will indicate if the current regime is confident of steering the country and renewing its mandate on the basis of its performance, especially on the economic front, or it feels the need to further religious polarisation to remain in power beyond 2024.

The PIL could impinge on the current status of at least four places of worship or monuments. Laying claims on the Gyanvapi mosque in Varanasi and the Shahi Idgah mosque in Mathura have been part of the Hindutva charter since the 1950s. Immediately after the Ayodhya judgement in November 2019, a BJP lawmaker declared in Parliament that the two shrines needed to be 'liberated' now. The RSS has further indicated that it will allow samaj, or society, to shape the organisation's stance on these two mosques. Already, courts in the two cities are seized of multiple petitions seeking removal of these mosques

Besides the two historical monuments, the status of two other shrines/monuments remain questioned in lower courts. These are Lucknow's Teele Waali Masjid, claimed by pro-Hindutva forces as being built after destroying the Laxman Teela, mythologically identified with Lord Ram's brother.

A Delhi court is also seized of a claim that the famous minaret, Qutub Minar, was originally a complex of 27 "lofty" Hindu and Jain temples before they were destroyed in the 12th century. The petitioners are seeking creation of a trust, to which should be handed over the property's management and administration.

Ironically, challenging the constitutionality of the 1991 Act, also questions the apex court judgement that “closed” the Ayodhya dispute. This belligerence may cost Hindutva forces, too, but the nation stands to lose the most. The Centre must emphatically contest the PIL's contentions.