1. Context and Background

• Oral Observation by Justice D.Y. Chandrachud:
  During the 2022 Gyanvapi petition hearing, Justice Chandrachud remarked that Sections 3 and 4 of the Places of Worship Act, 1991 do not prohibit the "ascertainment of religious character" of places of worship.
• Impact: This observation has led to increased petitions in lower courts, seeking surveys to determine the historical or religious origins of various mosques and dargahs in India.
• Places of Worship Act, 1991:
  This Act prohibits changing the religious character of places of worship as they existed on August 15, 1947, aiming to maintain communal harmony.
• Exceptions: The Act excludes cases like the Ayodhya Ram Janmabhoomi-Babri Masjid dispute, which were already in litigation before the Act’s enactment.

2. Key Sites Facing Survey Petitions

1.     Ajmer Dargah and Adhai Din Ka Jhonpra (Ajmer):

o    Ajmer Dargah: Petitioners claim it was originally a Sankat Mochan Mandir, although it is a revered site visited by people of all faiths.

o    Adhai Din Ka Jhonpra: Alleged to have been a Sanskrit college and Jain temple before being converted into a mosque by Qutubuddin Aibak.

§  The Archaeological Survey of India (ASI) acknowledges it as a mosque built using pre-Islamic architectural elements but disputes the temple-origin claims.

2.     Shamsi Jama Masjid (Badaun):

o    Claims suggest it was originally a Neelkanth Mahadev temple, but the mosque’s committee contends the petition is legally non-maintainable.

o    It is among the oldest mosques in North India, built during the Delhi Sultanate period.

3.     Other Contested Sites:

o    Jama Masjid (Sambhal): Recent surveys led to violence and Supreme Court intervention.

o    Teelewali Masjid (Lucknow), Atala Masjid (Jaunpur), and others face similar petitions.

4.     Better-Known Disputes:

o    Gyanvapi Masjid (Varanasi) and Eidgah (Mathura): Long-standing cases alleging Hindu temple origins.

3. Rising Calls for Surveys

• Recent Trends:
• A wave of petitions has emerged in lower courts post the Chandrachud observation.
• Courts in Uttar Pradesh and Rajasthan have admitted several such petitions, with some ordering surveys.
• Consequences:
• In Sambhal, violence erupted following survey orders, highlighting the sensitive nature of these cases.
• Concerns of communal tensions and disruption to historical narratives have been raised.

4. Historical Contestations

• Adhai Din Ka Jhonpra:
• Built by Qutubuddin Aibak (12th century), later beautified by Iltutmish.
• Claims of its origin as a Jain temple date back to the book Ajmer: Historical and Descriptive by Har Bilas Sarda.
• ASI counters these claims, asserting its identity as a mosque incorporating architectural elements from pre-Islamic structures.
• Shamsi Jama Masjid:
• Constructed during the Delhi Sultanate, it is said to have replaced an earlier structure.
• Disputes arise over its alleged Hindu temple origins.

5. Legal and Social Implications

• Conflict with the Places of Worship Act, 1991:
• The Act’s prohibition against altering the religious character of places as of August 15, 1947, is often overlooked by lower courts admitting these petitions.
• Critics argue that admitting such cases undermines the Act’s intent to preserve communal harmony.
• Communal Tensions:
• Surveys and related claims risk exacerbating religious divides, as seen in the violence in Sambhal.
• Prominent figures and organizations, including the All India Muslim Personal Law Board, have called for higher judicial intervention to bar such petitions.
• Calls for ASI Involvement:
• Petitioners often demand ASI surveys to determine the historical authenticity of claims, adding layers of historical interpretation to legal battles.

6. Broader Implications

• Impact on Heritage Sites:
• Repeated surveys and legal contests risk politicizing and damaging historical monuments.
• Need for Judicial Clarity:
• The Supreme Court has been urged to provide clear directions to lower courts to prevent misuse of legal provisions.
• Communal Harmony:
• Balancing historical inquiry with the need to maintain peace is a delicate task for policymakers and the judiciary.

7. Conclusion

The rising petitions to survey mosques and dargahs reflect a complex interplay of history, law, and communal sensitivities. While preserving historical heritage is important, these cases underline the need for judicial clarity, adherence to the Places of Worship Act, 1991, and measures to avoid fueling communal tensions. A nuanced approach that respects both historical narratives and communal harmony is essential for resolving these disputes.

Discuss the implications of rising survey petitions on historical mosques and dargahs in India. How do these petitions relate to the Places of Worship Act, 1991, and what measures can be taken to address potential communal tensions?

Answer:

Introduction

The Places of Worship Act, 1991, prohibits the alteration of the religious character of places of worship as they existed on August 15, 1947. However, recent survey petitions in lower courts concerning historical mosques and dargahs, such as the Gyanvapi Masjid, Ajmer Dargah, and Adhai Din Ka Jhonpra, have sparked debates on their historical origins. These petitions often lead to communal tensions and raise legal and social challenges.

Implications of Survey Petitions

1.     Legal Implications:

o    Conflict with the Places of Worship Act, 1991:

§  The Act explicitly prohibits altering the religious character of places of worship but allows "ascertainment of religious character," leading to ambiguities.

o    Judicial Overreach:

§  Lower courts admitting such petitions may undermine the Act’s intent and create legal precedents that could disrupt communal harmony.

2.     Social and Communal Tensions:

o    Surveys of religious sites risk exacerbating communal divides.

o    Incidents like the violence in Sambhal illustrate the sensitivity of these disputes.

3.     Impact on Historical Heritage:

o    Repeated surveys and legal disputes politicize and potentially damage historical monuments.

o    Sites like the Adhai Din Ka Jhonpra risk losing their protected status as archaeological treasures.

4.     Administrative Overload:

o    Rising petitions demand resources for surveys, legal battles, and law enforcement to manage public reactions.

Relationship with the Places of Worship Act, 1991

1.     Objective of the Act:

o    Enacted to preserve communal harmony by maintaining the status quo of places of worship as of 1947.

o    Exceptions: Disputes under litigation before the Act (e.g., Ram Janmabhoomi-Babri Masjid case).

2.     Challenges:

o    Ambiguities around "ascertainment of religious character" create legal loopholes.

o    Lower courts admitting petitions for surveys often ignore the Act’s core provisions.

Measures to Address the Issue

1.     Judicial Clarity:

o    The Supreme Court should issue clear guidelines to prevent misuse of the Act and disallow frivolous petitions.

2.     Strengthening the Act:

o    Amendments to explicitly prohibit surveys that alter the character of religious sites.

o    Penal provisions for misuse of legal processes.

3.     Encouraging Dialogue:

o    Interfaith and community dialogue to address historical grievances without resorting to legal or political confrontations.

4.     Preservation of Heritage:

o    The Archaeological Survey of India (ASI) should ensure the integrity of historical monuments through impartial research and surveys.

o    Promote the idea of shared heritage rather than divisive narratives.

5.     Government Oversight:

o    Stronger monitoring mechanisms to ensure lower courts adhere to legal precedents and guidelines.

o    Sensitization campaigns to discourage communal rhetoric.

Conclusion

Survey petitions on historical mosques and dargahs challenge the principles enshrined in the Places of Worship Act, 1991, and risk undermining communal harmony. Clear judicial directives, community dialogue, and stronger legal frameworks are essential to balancing historical inquiry with the preservation of peace and national unity. A nuanced approach can help prevent the politicization of heritage and uphold India’s secular values.