Why Cut Off Date For Status Quo Of Places Of Worship Must Be 1947?
By
New Age Islam Staff Writer
14 October
2023
The Petitioner
Cleverly Chooses 1192 As Cut Off Date
Main
Points:
1. Supreme
Court rejects plea seeking removal of Shahi Eidgah Masjid, Mathura.
2. BJP leader
challenges Places of Worship Act, 1991.
3. The
opponents of the Act argue that the cut off date should be 1192.
4. In the
middle ages, Hindu kings too destroyed and looted Hindu temples and Buddh Vihars.
5. Ellora caves
were Buddhist Vihars turned into Hindu shrines.
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The
Shahi Idgah, Mathura. Photo: Photo Division, Government of India
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After the
Babri mosque was handed over the Hindus by a Supreme Court judgment the
Hindutva lobby has been campaigning for Gyan Vapi mosque of Kashi and Mathura
Shahi mosque as they claim that the two were also temples and were converted
into mosques. The discovery of an alleged Shiv ling in Gyan Vapi mosque has
strengthened their claim.
Analysts
fear that the two mosques may also go the Babri mosque. A narrative has been
widely circulated that Muslim rulers destroyed thousands of mosques during
their rule and converted many temples into mosques. But historians narrate
incidents of destruction or looting of temples and Buddha Vihars by Hindu kings
in the middle ages. For example, in 64, a Pallav king Narasimhavarman looted
the idol of Ganesha from the capital of Vatapi. In the 8th century, Bengali
soldiers looted the idol of Vishnu Baikuntha from Lalitaditya kingdom of
Kashmir. In the tenth century, the Rashtrakuta king Indra III destroyed the
temple of Kalpriya near the river Yamuna.
The caves
of Ellora were Buddhist Vihars which were turned into a Hindu shrine. There are
more examples. Muslim monarchs also may have followed the norm and destroyed or
looted some temples. Mahmood Ghaznavi looted Somnath Mandir but he was not an
invader who looted the temple and went away.
The Muslim
kings and emperors ruling India did not destroy temples because they did not
antagonise their subjects who formed the majority of the population. In the
contrary, they granted land for the construction of temples and granted funds
for their repair and maintenance. Emperor Aurangzeb reportedly destroyed
Vishweshwar temple but for another reason.
Pattabhi
Sitramayya wrote in his book Feathers and Stones that Aurangzeb destroyed the
temple because a Hindu queen was dishonoured there. He destroyed some other
temples where immoral acts were committed. It is a fact that priests exploited
women in many temples. During the freedom movement in the 30s, a movement
against the exploitation of women by the temple priests was launched by
Bengalis in Bengal for which the Bengali poet Qazi Nazrul Islam had written the
theme song.
Today, when
a temple and a mosque stand side by side, it is presumed that the mosque might
have been built by demolishing a part of tge temple. But during the middle
ages, the kings followed the policy of equal respect to all religions. For
instance, King Harshavardhan patronised both Hinduism and Buddhism. Last year,
an idol of Naga Devi and remains of a wall were unearthed from near the Nalanda
university in Bihar. The historians presumed that a temple of Naga Devi might
have existed near Nalanda Vihar, a Buddhist religious learning centre during
the 7th century.
Those who
say that the cut off date to maintain status quo of places of worship should be
1192 instead of 1947 know that if the cut off date is fixed at the 8th century,
they will lose many temples as before the Muslim rulers destroyed Buddhist Vihars
in the 12th century, Hindu revivalist forces converted many Buddhist Vihars
into temples from the 8th to 12th centuries. Therefore, it would be convenient
for them if the cut off date is,12th century as only Muslim rulers will be
blamed.
India won
independence in 1947 and it adopted a Constitution declaring itself a secular
democratic country guaranteeing all the religions equal space and respect.
Living in the past will not provide any solution to the problems but will create
new problems.Common people should not be punished for the wrongs of some kings,
be they Hindu, Muslim or Buddhists and that too when the stories of their
wrongs are not authenticated by historical records but circulated through
propaganda literature.
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Why
the Places of Worship Act Must Be Preserved
By
Nandini Sundar
12/OCT/2023
The
Allahabad high court judgment dismissing a PIL asking for the removal of the
Shahi Idgah in Mathura is a relief, even though it is on the technical ground
that similar petitions are pending before it. Given the Supreme Court’s
willingness to entertain an archaeological survey of the Gyan Vapi Mosque in
Varanasi and a challenge to the Places of Worship Act 1991, both the Gyan Vapi
mosque and Shahi Idgah may still go the way of the Babri Masjid. The template
is set – a local dispute elevated to a national issue, a self-appointed next
friend of the idol, a court-mandated archaeological survey, and a judiciary
which values faiths differentially.
When Chief
Justice of India (CJI) D.Y. Chandrachud argued that ascertaining the religious
character of a place was not barred under the Places of Worship Act, and agreed
to examine the Act itself, he reneged directly on a commitment the Supreme
Court had made barely a few years ago. In an otherwise disappointing judgement,
handing over the site of the Babri Masjid to the very people who vandalised it,
a five-judge bench of the court reiterated the importance of the Places of
Worship Act of 1991:
“In
providing a guarantee for the preservation of the religious character of places
of public worship as they existed on 15 August 1947 and against the conversion
of places of public worship, Parliament determined that independence from
colonial rule furnishes a constitutional basis for healing the injustices of
the past by providing the confidence to every religious community that their
places of worship will be preserved and that their character will not be
altered. The law addresses itself to the State as much as to every citizen of
the nation. Its norms bind those who govern the affairs of the nation at every
level. Those norms implement the Fundamental Duties under Article 51A and are
hence positive mandates to every citizen as well. The State, has by enacting
the law, enforced a constitutional commitment and operationalized its
constitutional obligations to uphold the equality of all religions and
secularism which is a part of the basic featuresof the Constitution. The Places
of Worship Act imposes a non-derogable obligation towards enforcing our
commitment to secularism under the Indian Constitution. The law is hence a
legislative instrument designed to protect the secular features of the Indian
polity, which is one of the basic features of the Constitution.
Non-retrogression is a foundational feature of the fundamental constitutional
principles of which secularism is a core component. The Places of Worship Act
is thus a legislative intervention which preserves non-retrogression as an
essential feature of our secular values.” [Emphasis supplied]
If the
law’s “norms bind those who govern the affairs of the nation at every level”,
this presumably includes the highest judiciary.
Enabling the buildup to a demand for the conversion of the Gyan Vapi
Mosque or the Shahi Idgah, judicially or otherwise, should really be classified
as abetment under the Places of Worship Act, punishable by three years
imprisonment and fine. But who will jail the judges and who will bind them to
obey their own stated norms?
BJP
politician and serial PIL petitioner Ashwini Upadhyay’s challenge to the Places
of Worship Act rests on the grounds that by making 1947 the cut-off date on
which all claims to restoration of places of worship would cease, it bars
judicial redress; and that destroyed temples are really still temples and
‘restoring’ them would not involve conversion. This is the ghar wapsi argument,
used to escape culpability when it comes to Hindu conversions of Adivasis, now
being applied to Hindu temples.
Upadhyay’s
petition is deeply offensive with its reference to ‘Hindus, Jains, Buddhists
and Sikhs’ as the only victims, the language of ‘fundamental barbaric
invaders’, and the argument that 1192 (Ghurid invasion) should be the cut-off
date rather than 1947 for restoration of places of worship. A self-respecting
constitutional court – which owes its very existence to independence in 1947
and the Republic it enshrined – should have thrown out the petition on this
ground alone. One might also ask why 1192? Why not go back to the advent of the
Aryans and the “intentional” damage and smashing of Harappan sites of worship,
as detailed by the archaeologist R.S. Bisht?
There are
three issues at stake here: the conception of history that is being enshrined
in the courts through such cases; the question of faith; and the question of
who is entitled to judicial redress and how. But before that, it would be
useful to go back to the Lok Sabha debates on the Places of Worship Act on
September 9 and 10, 1991, which make fascinating reading.
Parliamentary
Debates On The Places Of Worship Act
The Places
of Worship Bill was brought in as part of a commitment made in the Congress
manifesto, as a response to the communal buildup created by L.K. Advani’s Rath
Yatra, and the purchase of land by the Kalyan Singh government next to the
Babri Masjid. The Act prescribes 1947 as the cutoff date to maintain status quo
for all places of worship, abates all existing disputes as of this date; makes
an exception for the Ramjanmabhoomi-Babri Masjid, buildings under ASI
governance and cases settled by mutual acquiescence or judicial decree prior to
the Act, and prescribes a punishment of up to three years and a fine, for any
kind of involvement in converting a religious shrine to that of another faith
or denomination.
Interestingly,
this was not the first time this principle was asserted. The religious sites of
another faith, like the women of a community, have always been among the first
objects of attack in a communal riot. As Anil Nauria has pointed out, at the
1924 Unity Conference, following riots in Delhi, a ‘Resolution on Religious
Toleration’ passed on October 2, 1924 stated:
“That all
places of worship, of whatever faith or religion, shall be considered sacred
and inviolable, and shall on no account be attacked or desecrated, whether as a
result of provocation or by way of retaliation for sacrilege of the same
nature. It shall be the duty of every citizen of whatever faith or religion, to
prevent such attack or desecration as far as possible and where such attack or
desecration has taken place, it shall always be promptly condemned.” [Indian
Annual Register, 1924 (Vol 2), p. 156]
Again,
after the illegal installation of the Ram Lalla idol inside the Babri Masjid in
1949, Pandit Sunderlal organised a Qaumi Ekta Sammelan (Religious Unity
Convention) in 1950, in which Acharya Narendra Dev passed a resolution
defending status quo in respect of all places of worship from 1947.
The 1991
debate over the Places of Worship Act was marked by some drama. Even before it
was presented, BJP members objected; they frequently interrupted MPs speaking
in support of the Bill, threw a paan wrapper at one MP, threatened to “see
people outside the house” and finally walked out. BJP MPs insisted that the
Bill was not going to settle disputes; demanded that the Kashi Gyan Vapi mosque
and Mathura Idgah also be excluded along with the Babri Masjid; and asked why
the Bill would not be applicable to J&K.
Uma Bharti
asserted that she felt wounded and inferior when she saw a mosque next to a
temple. Mani Shankar Iyer countered this by saying that for him the same image
created pride in India’s composite heritage. Others also defended the Bill as
essential for secularism, pointing out the Hindus had destroyed Buddhist and
Jain shrines.
Ram Vilas
Paswan and Somnath Chatterjee pointed to Congress’s complicity in opening the
locks of the Babri Masjid. While the BJP wanted the Ramjanmabhoomi to be handed
over not by the courts, but by the power of Hindu faith, Congress MPs called
for a speedy judicial resolution to the issue that both sides would have to
accept. A few non-Congress MPs, however, questioned the exclusion of the Babri
Masjid from the Bill, given that it was the immediate cause of action!
Some BJP
MPs questioned 1947 as the cut-off date arguing that the real cut-off date
should be the 12th century, but other MPs stoutly defended August 15, 1947
because that was the date on which a new future was forged for the country.
An
important question raised by some Muslim MPs – P.M. Sayeed, Ebrahim Sulaiman
Sait and Sultan Salahuddin Owaisi – was whether it was simply conversion to
another place of worship that would count or any change in the nature of the
place. This was rooted in the experience of Muslim sacred spaces
post-partition. As Indrajit Gupta pointed out, several mosques and dargahs in
Punjab had been taken over for residential buildings, cow sheds and other such
purposes. Yunus Saleem also asked for protection to tombs, graveyards and other
such sites which were not strictly objects of worship, but nevertheless sacred.
(Of course, a BJP MP objected to the very idea of ever giving such spaces back
to Muslims.)
The home
minister responded by saying that clause 4 (1) covered this by providing for
the “continuance of the religious character of a place of worship existing on
the 15th day of August, 1947.” However, penal action is prescribed only for
conversion to another place of worship.
When the
Supreme Court considers the challenge to the Act, it would do well to remember
that it represents the legacy of the freedom movement, the secular principles
of a former socialist leader from Ayodhya, Acharya Narendra Dev, and the
majority view of an earlier house.
An early 20th century archival photograph of the Babri Masjid. Photo:
British Library
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Judicial
Appreciation Or Desecration Of History?
It is
interesting how often judiciaries are called upon to exercise historical
judgments, and how they claim expertise in doing so. For instance, while
hearing the Gyan Vapi case, the Supreme Court noted that it would consider the ASI
report as it had done in the Ayodhya case, ‘separating the grain from the
chaff’, even as it discounted the views of non-ASI professional archaeologists.
In the Ayodhya judgment, there was also no mention of the immediate historical
context in which Ramjanmabhoomi became an issue – who pulled the mosque down,
etc. Indeed, the judgment ruled it irrelevant (para 429). To any professional
historian, this is a surprising omission.
History in
multicultural, multi-religious and ancient societies like India, is a
complicated issue. Take the history of the Gyan Vapi itself. In an essay on
entangled histories in Benaras, Madhuri Desai points out that there was no
archaeological or recorded evidence of a Visheshwur temple before the 15th
century. The temple that was ordered to be destroyed by Aurangzeb in 1669 was a
temple that had been built under Mughal patronage circa 1590. Yet this earlier
patronage is forgotten by the Hindu right and only the destruction is
highlighted.
Whether
Aurangzeb demolished the temple because a Hindu queen from Kutch was
dishonoured there as Pattabhi Sitrammaya reported in his book Feathers and
Stones is a moot question today. What is more important is that in 2022 Ravi
Kant, a Hindi lecturer at Lucknow University, was attacked by the ABVP and an
FIR lodged against him for quoting from Sitarammaya’s account. Is the right to
discuss history now going to be limited to only one ideology?
Subsequent
rebuildings of the temple adjacent to the Mosque were propelled by Maratha
politics, which needed to weaponise Hinduism as part of their anti-imperial
struggles. Even later, as ethnographer Vera Lazaretti shows, the pilgrimage
around the Jnana Vyapi well and Maidan was the subject of much
litigation over decades by the Vyas family trying to claim exclusive rights,
and it is this local dispute which has been picked up and magnified by the RSS.
But as Lazaretti writes, ironically the Vyas family themselves have been
displaced by the Kashi Vishwanath corridor, and their role as litigants taken
over by lawyer Vijay Shankar Rastogi as the new “next friend” of Kashi
Vishwanath.
Religious
Desecrations As Conquest
Muslim
destruction of Hindu shrines was clearly not the only form of religious
destruction. Fight between Shaivites and Vaishnavites, between different
denominations within Christianity and Islam – all led to destruction of each
other’s place of worship. Richard Davis shows how the taking of idols or images
from subjugated rulers and placing them in one’s own buildings was a routine
act, indeed one that was sanctified by Manu. By contrast, temple desecration
was more limited, but there too, it was done by rulers as part of conquest;
precisely because temples were political symbols, with the tutelary deity
expressing the sovereignty of both the God and King. Richard Eaton provides an
illustrative list of instances where Hindu kings destroyed temples:
“In A.D.
642, according to local tradition, the Pallava king, Narasimhavarman I, looted
the image of Ganesha from the Chalukyan capital of Vatapi. Fifty years later,
armies of those same Chalukyas invaded North India and brought back to the
Deccan what appear to be images of Ganga and Yamuna, looted from defeated
powers there. In the eighth century, Bengali troops sought revenge on King
Lalitaditya by destroying what they thought was the image of Vishnu Vaikuntha,
the state deity of Lalitaditya’s kingdom in Kashmir. In the early ninth
century, the Rashtrakuta king, Govinda III, invaded and occupied Kanchipuram,
which so intimidated the king of Sri Lanka that he sent Govinda several
(probably Buddhist) images representing the Sinhala state. The Rashtrakuta king
then installed these in a Saiva temple in his capital. About the same time the
Pandyan king, Srimara Srivallabha, also invaded Sri Lanka and took back to his
capital a golden Buddha image-” a synecdoche for the integrity of the Sinhalese
polity itself “-that had been installed in the kingdom’s jewel palace. In the
early tenth century, the Pratihara king, Herambapala, seized a solid gold image
of Vishnu Vaikuntha when he defeated the Sahi king of Kangra. A few years
later, the same image was seized from the Pratiharas by the Candella king,
Yasovarman, and installed in the Lakshmana temple of Khajuraho. In the early
eleventh century, the Chola king, Rajendra I, furnished his capital with images
he had seized from several prominent neighboring kings: Durga and Ganesha
images from the Chalukyas; Bhairava, Bhairavi, and Kali images from the
Kalingas of Orissa; a Nandi image from the Eastern Chalukyas; and a bronze Siva
image from the Palas of Bengal. In the mid-eleventh century, the Chola king,
Rajadhiraja, defeated the Chalukyas and plundered Kalyani, taking a large black
stone door guardian to his capital in Thanjavur, where it was displayed to his
subjects as a trophy of war.
While the
dominant pattern here was one of looting royal temples and carrying off images
of state deities, we also hear of Hindu
kings destroying the royal temples of their political adversaries. In the early
tenth century, the Rashtrakuta monarch, Indra III, not only destroyed the
temple of Kalapriya (at Kalpa near the Jamuna River), patronized by the
Rashtrakutas’ deadly enemies, the Pratiharas, but they took special delight in
recording the fact.” (Eaton, Temple Desecration, pg 105)
There was,
therefore, nothing unique about Muslim rulers destroying temples. Why do RSS
petitions never use the same language of “barbaric invaders” against these
Hindu medieval kings? The figures of temple destructions are also significantly
lower than is claimed by the Hindutva believers. Moreover, temple destruction,
when it did occur, was directed by rulers at temples associated intimately with
other rulers, and not by ordinary Muslims or Hindus. Compare this to the
present, when every Hindutva ideologue feels entitled to punish every ordinary
Muslim.
Hindu
replacement of Buddhist shrines is a widespread phenomenon, and not all of this
was peaceful. Caves 14 and 15 of the Ellora caves were originally Buddhist
viharas which were then converted to Hindu shrines. It now emerges from a
Madras high court order of 2022 that the idol of Thalaivetti Muniyappan in
Salem was actually a statue of the Buddha. The court has ordered the land of
the temple to be handed over to the Archaeology department and for Hindu rituals
to cease. In an equal world, accepting the challenge to the Places of Worship
Act would throw up a legal tsunami.
A place may
change hands between multiple faiths in its history – for instance, in the
Daulatbad fort, a Jain temple was converted to a Muslim mosque and then
converted to a Bharat Mata temple. Should it go back to the Jains or the
Muslims?
Religious
desecration as conquest, is, however, not the only reason why religious places
may lose their original character. Populations die out in a particular place,
shrines acquire new worshippers, and of course, there are so many glorious
examples in this country of syncretism where people of diverse faiths worship
together as in the Sufi dargahs of Delhi.
Historical
and religious structures are inevitably layered upon each other, and a petition
which seeks to privilege one kind of restoration of a place of worship over
others needs to be thrown out at the very outset as violative of Article 14.
When The
State Demolishes Hindu Temples, Does That Make It More Legitimate?
Those
Hindus who care only when Muslims demolish their temples rather than when the
government does so, in the name of development, road widening, removing
encroachments, etc. actually care less about their temples and their religion
than about getting the better of Muslims. The best example perhaps is the
destruction of Shoolpaneshwar and other old Shiva temples along the Narmada
which is itself sacred. Why do the cracks in the Badrinath temple and the
sinking of Joshimath due to reckless building in the hills not excite the same
emotions both among ardent Hindutva adherents and the BJP governments in power,
as does demolishing a mosque in order to build a grand new temple there?
When it
comes to Muslim shrines, however, a BJP-run government is almost synonymous
with the Hindutva vigilante brigades. The Ahmedabad Municipal Corporation
building a road over Vali Guajrati’s tomb in Ahmedabad was really a
continuation of the 2002 pogroms, in which mosques and dargahs were destroyed. In
Delhi, the Union Housing and Urban Affairs Ministry’s takeover of 123
properties belonging to the Delhi Waqf Board and the demolition of some of them
in the name of road widening is clearly malafide.
This urban
beautification logic which is applied to century-old mosques does not seem to
matter when it comes to the hundreds of ‘Pracheen Shiv Mandirs’ and “Pracheen
Hanuman Mandirs’ which dot our cities in North India. Before my eyes, a
Pracheen Shiv Mandir came up in my residential area during the COVID-19
pandemic, next to a board which said ‘Government land, do not trespass.’ The
police sat outside it while it was being constructed and held COVID-19 vaccine
camps there. Incidentally, the entire area used to be a Shia graveyard which
was transformed into a Hindu colony after Partition.
Upadhyay
claims that the Places of Worship Bill cuts off legal redress. This is no more
than any statute of limitations. Instead, one might argue that the Places of
Worship Act enables legal redress for people whose shrines have been forcibly
taken over by more powerful forces, which in India today, can only be the RSS
followers.
Adivasi Places
Of Worship
Of all the
communities that need to invoke the Places of Worship Act and demand the
restoration of their shrines, it is the Adivasis. As one of India’s most
vulnerable and constitutionally protected groups, it is they who should be the
first charge on the legal system. Unfortunately, however, their beliefs are
totally discounted.
Take, for
instance, the hill in Giridih where Adivasis worship as Marang Buru and Jains
worship as the Parasnath hill. The BJP government wanted to convert it into a
tourist spot, and backed off only under Jain protest. Will the Supreme Court
hand the Sabrimalai temple back to the Mala Araya tribal community who were
displaced from it by Brahmin priests? In the last three decades alone, I have
seen how several Adivasi and OBC priests have been displaced from small shrines
in Bastar, and the space taken over by Brahmins. By traditional accounts, Lord
Jagannath of Puri was stolen from the Sabaras.
But this
kind of religious appropriation is just one of the many attacks that are taking
place on Adivasi religious sites. Sacred hills such as Niyamgiri (Odisha),
Surjagadh (Maharashtra), Raoghat (Chhattisgarh) are being taken over for
mining, and the believers who worshipped at these shrines are being attacked
for protesting.
In the
Ayodhya judgment, the court emphasised the practice of worship in determining
who should have title to the land. When it comes to Adivasi sacred hills, there
is evidence of continued practice of worship over several generations, with
people coming from far away, even neighbouring states. Even when closed off by
mining authorities, as in the Bailadilla hills, Adivasis seek permission from
mining authorities to go and worship, because it would be inconceivable to
abandon that sacred space. As of 1947, they were places of worship and should
be recognised as such, even if a postcolonial government wants to enact
colonial practices, treating them as terra nullius and available for mining.
Mutual Accords
The Places
of Worship Act makes an exception for places of worship whose conversion is
settled by mutual acquiescence before the commencement of the Act. Perhaps the
lawmakers recognised that mutual acquiescence in a communal vitiated atmosphere
where one side was dominant was meaningless. The dargah at Pavagadh which Uma
Bharti claimed in the parliamentary debates on the Place of Worship Bill, hurt
her sentiments, has now been removed by “mutual consent”, enabling Prime
Minister Narendra Modi to unfurl a triumphal flag atop the temple spire. One
can only presume that this was much like the “compros” that enabled Muslim
villagers to return to their villages after the 2002 pogroms.
But perhaps
all is not lost in this country. In the last few years, the Sikhs of Punjab
have restored mosques which were abandoned after Muslims migrated to Pakistan.
It is this model that we need to emulate – one that seeks to promote communal
harmony in the present – rather than the revanchist and illiterate model
promoted by the RSS. But for this, the courts must respect the faith of all
Indians, and above all, respect the constitution in which all Indians have
faith.
-----
Nandini
Sundar is a Delhi based sociologist.
Source: Why
the Places of Worship Act Must Be Preserved
URL: https://newageislam.com/islam-politics/status-quo-places-worship-1947/d/130901