Misusing a judicial observation to unearth temples under mosques will lead to disaster

Unless the judiciary steps in quickly and firmly to plug the breach that D Y Chandrachud’s 2022 observation has opened, the threat of communal polarisation and associated violence can only increase

Who would have thought the mausoleum of Khwaja Moinuddin Chishti in Ajmer would one day be claimed as a Hindu temple? Yet the unthinkable has happened.

A local court has sent notices to the Ministry of Minority Affairs, the Archaeological Survey of India (ASI), and the Dargah Management Committee about a survey to be conducted to ascertain whether there was a temple beneath it. This was in response to a petition.

One of the petitioners told the Indian Express that their plea was based on a book by Har Bilas Sarda, an eminent judge under British rule, where he claimed that “inside the cellar (of the mausoleum) is the image of Mahadeva in a temple where ‘sandal’ (Chandan) used to be placed every day by a Brahmin family”.

This development has taken place in the wake of communal violence in Sambhal in Uttar Pradesh. There too, the district court had ordered a survey of the Shahi Jama Masjid to ascertain whether it had been built by destruction of a Hindu temple. Four people have died up to now in police firing in Sambhal and a minor injured in the ensuing violence.

The violence in Sambhal was the direct fallout of the alacrity with which the district judge ordered access to the mosque and the survey team reached the site on the same day.

Perhaps district judges feel empowered to pursue such cases on the flimsiest of claims by the reversionary reading of the Places of Worship (special Provisions) Act 1991 in the Gyanvapi case by the former Chief Justice of India D Y Chandrachud in 2022. Chandrachud’s 2022 observation has not only opened a can of communal worms; they have since gone crawling to different parts of India.

The 1991 Act was adopted by Parliament to avoid creating new disputes and raking up controversies, long been forgotten by the people, to preserve social harmony. It clearly stated that “no person shall convert 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”.

It was agreed that the Ram Janmabhoomi-Babri Masjid dispute was to be the sole exception. All other historical disputes about temples, mosques, churches, etc. were to be frozen as on August 15, 1947, when India gained Independence — laying down historical burdens.

Chandrachud in 2022, however, made an oral observation, that the 1991 Act did not disallow “ascertaining the religious character” of a structure even though its use could not be changed.

This went contrary to the Supreme Court’s own judgment in the Ram Janmabhoomi case, purportedly written by Chandrachud himself, which reaffirmed the constitutional significance of the 1991 Act declaring, “Our history is replete with actions that have been judged to be morally incorrect”, but emphasised that legal mechanisms should not be used as instruments for settling historical disputes.

Did the former CJI not once ask himself what purpose would be served by allowing for a process that would allow for the gathering of communal tinder? The current fallout of his 2022 observation proves that legal cleverness is no substitute for wisdom.

The 1991 Act came in when the Ram Janmabhoomi movement was still ongoing and the Babri mosque still standing. Hindutva militants were then agitators, not part of the governing class. They said they were looking for a compromise — hand over the three disputed sites at Ayodhya, Mathura, and Kashi to Hindus to buy peace.

Now that the political balance has changed — the Hindutva ideologues are no longer looking for ‘compromises’ by limiting the disputes over mosques. Now their narrative is that the status quo of August 15, 1947, was against Hindu interests, and left them bereft of their ‘rights’.

With a challenge to the 1991 Act still pending in the Supreme Court, that bulwark is not immutable. But after the 2022 observation has breached the dam, Hindutva activists can use legal pathways to start communal fires wherever they wish.

Meanwhile, Rashtriya Swayamsevak Sangh (RSS) Chief Mohan Bhagwat can afford to take a moderate stance in public with a declaration that, “There is no need to look for a shivling in every mosque.” The RSS has been noticeably silent on the violence that has erupted in Sambhal or the attempt to claim Ajmer Sharif.

Its work can be done by any Hindutva activist approaching a sessions or district court for a survey to establish the existence of a temple underneath a mosque. Already such surveys have been ordered by the courts in Mathura (‘Krishna Janmabhoomi’) and Kashi (Gyanvapi mosque). The legal malaise is spreading.

In 2003, the Vishwa Hindu Parishad (VHP) had threatened to launch an agitation for reclaiming 30,000 temples that had historically been converted into mosques if the Muslim community refused to yield on Ram Janmabhoomi. Other Hindutva ideologues have pegged the figure at almost half of that — 18,000 at last count. The figure of 18,000 is drawn from a two-volume book, ‘Hindu Temples. What happened to them’ published in 1990. It was co-authored by late Hindutva activist Sitaram Goel along with others of his ilk — Arun Shourie, Harsh Narain, Jay Dubashi, and Ram Swarup. The book argued that these 18,000 structures were either constructed over existing temples and/or used materials from destroyed temples.

The astounding potential such claims pose for communal conflagrations becomes evident from the state wise spread of the so-called disputed structures they identified: Andhra Pradesh 142, Assam two, West Bengal 102, Bihar 77, Delhi 72, Diu one, Gujarat 170, Haryana 77, Himachal Pradesh one, Karnataka 192, Kerala two, Lakshadweep two, Madhya Pradesh 151, Maharashtra 143, Odisha 12, Punjab 14, Rajasthan 170, Tamil Nadu 175, and Uttar Pradesh 229, among others.

Even if 10% of these claims are taken to court, one can imagine the number of uncontrollable fires that can be lit in the country.

Unless the judiciary steps in quickly and firmly to plug the breach that Chandrachud has opened through his 2022 observation, the threat of communal polarisation and associated violence can only increase.

(Bharat Bhushan is a Delhi-based journalist. Author's X handle: @Bharatitis)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.