Questions that arise after Sambhal order
Closure in the Places of Worship Act challenge will help bring clarity on disputes regarding sites of worship
The Supreme Court’s interim order in the Sambhal mosque dispute last week is emblematic of the delicate legal and communal landscape surrounding the spate of cases filed by Hindu litigants claiming sites currently housing mosques. While Chief Justice of India (CJI) Sanjiv Khanna took important steps to maintain peace and order, he decided to keep the petition pending rather than addressing the larger legal question posed by such suits.
As it stands, this approach appears to sidestep the need for urgent judicial clarity on the core issue — the applicability of the Places of Worship (Special Provisions) Act, 1991, which freezes the religious character of places of worship as it existed on August 15, 1947. While directing the mosque committee to approach the Allahabad high court first, the CJI-led bench chose to retain the petition in the Supreme Court and scheduled the next hearing for January 6. This raises several practical and jurisprudential concerns.
For one, by relegating the matter to the high court, the top court has effectively ensured that any subsequent ruling by the high court will eventually be challenged, bringing the matter back to the Supreme Court. Given this inevitability, it is unclear why the Supreme Court chose to keep the petition alive when the plea will likely be rendered infructuous after the high court order.
CJI Khanna’s stance also marks a notable shift from his earlier decisions. In cases involving Jharkhand chief minister Hemant Soren and Bharat Rashtra Samithi leader K Kavitha, justice Khanna had firmly directed them to exhaust remedies in the high court before approaching the top court. He had cautioned that allowing such bypassing of judicial hierarchies would open a Pandora’s box. If CJI Khanna departed from this practice in the Sambhal case due to the gravity of the issue and its potential impact on the preambular principles, he could have been more forthright by addressing the core issue directly. Additionally, if the intention behind keeping the petition pending was to signal to lower courts that the Supreme Court is closely monitoring the developments, a more decisive approach would have been to take up the matter in its entirety. CJI Khanna, as master of the roster, had the opportunity to consolidate similar disputes, such as the ongoing Shahi Idgah-Shree Krishna Janmabhoomi case, and address the foundational question of whether such suits are even maintainable under the 1991 Act.
The importance of resolving this preliminary issue cannot be overstated. The absence of a Supreme Court ruling and the lack of clarity by the Court over the last two years under former CJI Dhananjaya Y Chandrachud on whether the Act bars such suits has created fertile ground for district judges and high courts to issue conflicting and often politically charged orders. These divergent rulings not only muddy the legal waters but also risk exacerbating communal tensions.
Given the escalating number of such cases across the country, the Supreme Court must exercise its extraordinary powers under Articles 142 and 139A of the Constitution to consolidate and adjudicate these disputes. These articles empower the top court to ensure complete justice and transfer cases to itself where it deems necessary. The top court has invoked these provisions in less consequential matters, such as disputes over tax laws and criminal cases. In comparison, the question of whether suits seeking to alter the religious character of places of worship are maintainable under the 1991 Act holds far greater implications for communal harmony and the secular fabric of the nation. Leaving this sensitive issue to the discretion of trial courts and high courts risks not only inconsistent interpretations of the law but also social unrest, as seen in the Sambhal violence.
CJI Khanna could convene a Constitution bench to address the legal questions surrounding the 1991 Act as well as a bundle of petitions — some seeking to scrap the 1991 Act and some others asking for strict enforcement of that law — that have remained pending before the top court since 2021. Specifically, the Court must determine whether suits seeking to reclaim places of worship based on historical claims violate the Act and whether exceptions, such as the Ram Janmabhoomi-Babri Masjid case, can extend to other disputes by raising contentions over the “religious character” of such places. Until the apex court’s final decision, other courts could be restrained from acting on such suits. This approach would provide much-needed clarity and uniformity, ensuring that decisions on such cases are guided by constitutional principles rather than local political or communal pressures.
CJI Khanna’s predecessor, justice Chandrachud, faced criticism for comments suggesting that the religious character of a place of worship might need to be ascertained to determine its protection under the 1991 Act. However, those remarks were part of courtroom exchanges and did not culminate in a judicial ruling or a precedent that can be relied upon by any side in court proceedings. CJI Khanna now has the opportunity — and responsibility — to move beyond tentative observations and deliver a definitive ruling. By setting up a larger bench to examine the issue, he can provide the legal framework needed to address these disputes while reinforcing the principles of secularism enshrined in the Constitution.
The Sambhal mosque dispute is not an isolated incident. It is part of a broader trend of litigation targeting places of worship — a trend that has the potential to disrupt the fragile communal equilibrium of the country. The judiciary’s response to these cases will shape not only the legal discourse but also the social and political landscape of India for years to come. CJI Khanna must seize this moment to steer the apex court towards the path of judicial leadership. The question of whether such suits are maintainable under the 1991 Act is the keystone upon which the fate of these disputes rests. It is too critical a question to be left to piecemeal adjudication.
For the Chief Justice, this could be the defining moment of his tenure — a moment that demands both courage and clarity.
The views expressed are personal
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