Can Places of Worship Act be a deterrent to future Mandir-Masjid disputes?

No law can prove a deterrent in the absence of institutions and capacity to enforce it, say experts. There is also a concern that any govt may repeal it as Parliament can't be prevented from doing so

In the aftermath of the Supreme Court’s (SC’s) landmark Ayodhya judgment, some members of the fringe right affiliated to the ruling Bharatiya Janata Party (BJP) have revived the slogan ‘Kashi Mathura Baaki Hain’. Behind all this is the hope that the SC ruling will set a precedent for structures the Hindutva movement talked of targeting at the peak of the Ram Janmabhoomi movement in the late 1980s and early ’90s.

Babri Masjid, of course, was the top priority for the Rashtriya Swayamsevak Sangh (RSS), but the Vishwa Hindu Parishad and other similar organisations have also had their sights set on claiming Shahi Idgah in Mathura and Gyanvapi Mosque in Varanasi. Gyanvapi Mosque is said to have been built at the site of a Hindu temple, and the Shahi Idgah apparently was adjacent to the birthplace of the Hindu god Krishna.

Following the Ayodhya judgment earlier this month, the RSS and VHP have officially distanced themselves from some of the comments made by the Hindu right and said they will not get involved in any movement involving sites in Varanasi, Mathura or elsewhere.

Legally speaking, there is one law that should theoretically be a deterrent in case a place of worship is demolished or damaged to make way for another: The Places of Worship (Special Provisions) Act, 1991, passed by Parliament during the time of P V Narasimha Rao as prime minister.

Legal experts say it is the mention of this Act in the recent Ayodhya judgment that ensures there is no precedent set.

“The Supreme Court judgment does not set a precedent. The judgment deals with the Places of Worship Act. It upholds it and says it is Constitutionally valid. They recognise that Ayodhya was an exception because there was a case filed,” says Alok Prasanna Kumar, senior resident fellow at Vidhi Centre for Legal Policy.

The Act aims to prohibit conversion of any place of worship and to provide for maintenance of the religious character of any place of worship as it existed on the day of Independence, 15 August 1947.

“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 states.

However, the Act kept out the Babri Masjid, even as it still stood at the time. “Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceedings relating to the said place or place of worship,” the Act states.

This was because there were legal proceedings going on regarding the disputed site, and because Rao made this political concession to the RSS and the BJP.

As author Vinay Sitapati writes in his biography of Rao Half Lion, the then prime minister, against the judgement of his bureaucrats and the Congress party, “reposed his faith in the members of VHP, RSS, BJP and sundry Hindu gurus” that they would come to the dialogue table. A scholar of the Hindu epic mythologies, Rao assumed the Hindu right would warm up to him more than they did to the Gandhi family.

Rao wanted to build a consensus and his overconfidence in his ability to convince Hindu groups must go down as a serious failure of judgement, Sitapati writes.

The Act makes destruction of religious places of worship a punishable offence with imprisonment for a term — it may extend to three years and shall also be liable to fine. This is where legal experts say the problems arise, as the penalty may not be considered too harsh. And, more importantly, any law, however strict, will be ineffective in the face of the shortcomings in India’s judicial and legal system.

“More than the penalty provision, it is also about the certainty of that. The difficulty we have is that our prosecution rarely manages to prove successfully. It doesn’t matter even if you prove the death penalty for this. Prosecutions fail because they don’t manage to collect evidence and prove the case on time. That is the primary stumbling block for all criminal legislation in India,” Kumar says.

“I don’t think it can be a deterrent, to be quite honest. I don’t think a law can prove to be a deterrent where you don’t have the institutions and capacity to enforce the law,” Kumar adds.

There is also a concern among experts that any government may repeal the Act and the court cannot prevent Parliament from doing it. They say the government should come forward to say it will strictly enforce this Act.