The Places of Worship Act, 1991 is amongst the most Contentious Laws of the last 3 decades. This law was enacted by the P.V Narsimha Rao Government when the Ram Janmbhumi Movement was at its peak in the year 1991. The Long Title of the Act described it as “An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947; and for matters connected therewith or incidental thereto.”

Section – 4(1) of The Act declares that the religious character of the place of worship will continue to exist the same as what existed on the 15th day of August 1947. Section – 4 in its Clause – 2 further states that “any suit or legal proceeding with respect to the conversion of the religious character of any place of worship existing on August 15, 1947, pending before any court, shall abate — and no fresh suit or legal proceedings shall be instituted”. Section – 5 stipulates that the Act shall not apply to the Ram Janma Bhoomi – Babri Masjid case, and to any suit, appeal, or proceeding relating to it.

The PoW Act, 1991 presented by the then Minister Shri B S Chavan, and while moving the Bill, Shri Chavan said that this Bill will effectively curb any new controversies arising for conversion of any place of worship. Shri Chavan probably would not have been aware that this law in itself would turn into controversy and  would be challenged constitutionally in the Supreme Court of India.

As the recent developments in Kashi – Vishvnath Temple Case and Krishna Janmbhumi Case the constitutionality of The Places of Worship Act, 1991 is again in question. There are currently more than 15 impleading petitions filled in Supreme Court either supporting or opposing the petition.

This article attempts to examine the legal soundness of the act and test it on the cornerstone of the Indian Constitution. The moot question is whether the PoW Act applies to Kashi and Mathura Temple dispute; and if not, then why?

The Places of Worship Act, 1991 has been so drafted that its grammatical/literal interpretation will give absurd results. Section – 4(3)(a), “Nothing contained in Clause – 1 and Clause – 2, shall apply to any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

Ancient Monuments have been defined under Section – 2(a) of The Ancient Monuments and Archaeological Sites and Remain Act, 1958, as: “Ancient Monument” means any Structure, Erection or Monument, or any Tumulus or Place of Interment, or any Cave, Rock-Sculpture, Inscription or Monolith, which is of Historical, Archaeological or Artistic interest and which has been in existence for not less than “One Hundred Years”. All the disputed structures and sites including The Kashi – Vishvanath Temple and the Krishna Janmbhumi structure are more than 100 year old, satisfy all the essentials, and fall under the exception of The PoW, Act 1991, qualify as “Ancient Monuments”, hence are de-facto  exempted from the scope of The PoW, Act 1991.

The PoW, Act 1991 bars the conversion of a Place of Worship but leaves the scope of determining the true religious character of any place. This was also observed by the Bench comprising Justices D.Y. Chandrachud, J. Surya Kant, and J. P. S. Narasimha; while hearing the plea of Anjuman Intezamia Masjid Management Committee, challenging the Allahabad High Court order refusing to interfere with the Civil Court order of the appointment of Court Commissioner.

Legally this Act does not seem very sound and constitutionally it appears even more flawed. Article – 246(3) of the Constitution of India reads as “the Legislature of any State has exclusive power to make laws for such states or any part thereof with respect to any of the matter enumerated in List – II (state list) in the seventh schedule”. This means that the power to make laws on items enumerated in the State List lies exclusively with State Governments. Laws with respect to Pilgrimages could be enacted only by the state legislature as “Pilgrimages, other than pilgrimages situated outside India” is a state subject, mentioned under Item No – 7 of List – II, which is a state list. Item No – 20 of List – I, which is a Union List, mentions “Pilgrimages to Places outside India” – this reaffirms that Pilgrimages to Places within the Indian Territory would be dealt with by the respective States. The nearest authority giving Item could be Item no. 67, of the Union List which mentions, “Ancient and Historical Monuments and Records and Archaeological sites and Remains, “declared by or under law made by Parliament” to be of national importance”. Neither of the places in controversy is declared so by the parliament, hence the Union Legislature does not possess the power to enact any such law governing Pilgrimages which should exclusively be a state subject. 

Making a law by Union Legislature on Items mentioned under List – II (State List) is in violation of the Federal Structure of the Indian Constitution. The Federal Structure of the Indian Constitution has been declared as part of the Basic Structure of The Indian Constitution in the landmark Judgement of S.R. Bommai vs Union of India, 1994.

The PoW Act, 1991, takes away the power of High Courts and the Supreme Court by imposing a bar on them from hearing pending cases. The Jurisdiction of the Court cannot be compromised and the Right to Approach the Court cannot be taken away.

The law, though controversial, was not sent to the select committee. The acceptance of the Public Interest Litigation challenging constitutionality is reflective of the fact that there exists some substance about the constitutionality of this piece of legislature. 

For the enacted law to be ineffective, it either has to be repealed by the parliament or its effect stayed by the Higher Court or finally has to be declared unconstitutional by the Court. So far, the law has not been repealed, stayed, or declared unconstitutional by the Court. Its constitutionality has been challenged on the grounds of parliament being capable of enacting a law governing places of Pilgrimage along with grounds of violating Articles – 14, 15, 21, 26, 25, 29 and Arbitrary determination of date.

In light of the aforementioned reasons, the law being ambiguous and leaving a wide scope for exemption is not legally sound and the Jury is out to examine the constitutional vibrancy of the law.