Judicial paradigm in gyanvapi and shahi idgah mosque cases: A threshold to religious disputes and restoration demands

This article advocates for preserving secularism, religious freedom, and cultural harmony in India. It examines the legislative journey of the Places of Worship Act, from its 1961 origin as a bill aimed at restoring religious sites to its 1991 enactment. Contrasting the original bill's intent with the final Act's objectives, it highlights the legislative discourse evolution on safeguarding sacred sites writes Devashish Vashishth.

  • Devashish Vashishth Devashish Vashishth


In India, the preservation of religious sites holds profound significance, embodying not just physical structures but also history, faith, and cultural heritage. However, disputes over ownership and religious identity often emerge, presenting complex challenges at the intersection of religious sentiments, cultural identity, and legal frameworks.

For instance, the Ram Janmabhoomi-Babri Masjid dispute1, which saw a landmark Supreme Court judgment in November 2019, illustrates the intricacies of navigating religious and cultural heritage issues. Recent rulings, like the December 2023 judgment2 by the Allahabad High Court directing the Archaeological Survey of India (ASI) to assess the religious character of the Gyanvapi Mosque and Shahi Idgah Mosque, further underscore concerns about justice and communal harmony.

Through parliamentary debates and amendments, the Places of Worship Act (“Act”) emerged as a constitutional safeguard, balancing religious rights, cultural preservation, and communal harmony. The Act's role in upholding justice, equality, and religious harmony is emphasized, alongside a call for nuanced understanding and respect for diverse faiths. A critical analysis of the Allahabad High Court's judgment in the Gyanvapi Mosque and Shahi Idgah Mosque cases illuminates contemporary legal challenges. The court's directive for the ASI survey underscores the disputes' complexity and potential communal implications, necessitating cautious and sensitive approaches to resolution while upholding justice and communal harmony.

1. M Siddiq v Mahant Suresh Das (CA 10866-10867/2010); The Court overturned the 2010 Allahabad High Court judgment that divided the title to the Babri Masjid / Ram Janmabhoomi site. It awarded the title to the deity, Shri Ram Virajman.
2. U.P. Sunni Central Waqf Board vs. Ancient Idol of Swayambhu Lord Vishweshwar & Ors. (2023 SCC OnLine All 2760)



The genesis of the Places of Worship Act of 1991 extends far beyond its enactment, tracing back to the legislative landscape of 1961. It was during this pivotal year that a Member of Parliament in the Lok Sabha ignited discussions surrounding the 'Restoration of Places of the Religious Worship Bill'3 While the title of this earlier bill may bear resemblance to its 1991 counterpart, their objectives diverged significantly, shedding light on the nuanced evolution of legislative discourse surrounding the protection and restoration of sacred sites.

The original bill was not geared towards preventing conversions; rather, it aimed to facilitate the restoration of places of worship to specific persons or communities, returning them to their original rightful owners. In contrast, the 1991 Act took a different trajectory. It stands as a bulwark against conversions, prohibiting any alteration in the religious character of places of worship as it stood on August 15, 1947. Its essence lies in preserving the sanctity of these sites and matters related thereto.

Despite never progressing due to a negative motion, the discussion on the bill was relatively brief, lasting only about an hour. The then Minister of State in the Ministry of Home Affairs strongly criticized the proposed bill during the discussion, raising concerns about its constitutional challenges, ethical implications, and lack of provisions for fair hearings and appeals. He also questioned the proposed punitive actions against those obstructing its implementation. Overall, he deemed the bill controversial and likely to cause significant debate and disagreement.

In 1961, the government recognized that passing a bill on the restoration of places of religious worship could spark social unrest and communal tensions by forcibly altering property ownership related to religious sites. It could lead to legal challenges, set a precedent for revisiting historical grievances nationwide, and strain inter-community relations. Overall, its passage could result in a complex, contentious, and divisive situation with far-reaching repercussions.

3. Restoration Of Places Of Religious Worship Bill By Shri Prakash Vir Shastri; Introduced on December 2, 1961;

It was on January 4, 1991, after 30 years, Mitra Sen Yadav initiated a private member bill,4 proposing legislation to safeguard the status and titles of religiously significant places based on their state as of August 15, 1947. He highlighted the escalating disputes surrounding places of worship, emphasizing the urgent need for such legal measures to preserve communal harmony in a country enriched by diverse religions, cultures, and languages.

Later, on July 12, 1991, Zainal Abedin brought forth a resolution titled “Steps for Maintaining the Status Quo of Religious Shrines and Places of Worship as They Existed on August 15, 1947”.5 His resolution aimed to prompt the government to peacefully resolve disputes, particularly referring to the Ayodhya shrine issue. Abedin advocated for enacting legislation to preserve the status of all religious shrines and places of worship as of India's independence, aiming to address and prevent conflicts over religious sites nationwide.

After a prolonged debate, the motion was eventually withdrawn on August 23, 1991. This decision followed assurances from the then Minister of State in the Ministry of Parliamentary Affairs and the Ministry of Home Affairs regarding the government's commitment to preserving the status quo of religious sites, including Ayodhya. They reiterated efforts for a peaceful resolution of the Ayodhya shrine issue. Additionally, on the same day, the government introduced a new bill aligning precisely with the promises made earlier in parliament.

The motion for amendments in the Places of Worship (Special Provision) Bill was brought before the parliament, and many amendments were suggested, many of which were accepted and many rejected. One of the amendments suggested was making the birthplace of Lord Krishna and the Vishwanath temple an exception, like in the Ram Janam Bhoomi case, which was brought forth by Shri Girdharilal Bhargava.

4. Resolution Re. Places Of Religious Significance, Introduce on January 4,1991;
5. Resolution Steps For Maintaining Status Quo Of Religious Shrines And Places Of Worship As They Existed On 15th August, 1947, Introduced on JULY 12, 1991;

During legislative discussions, Shri Girdharilal Bhargava voiced concerns over the bill's implications6, referencing historical instances of temple demolitions during Muslim rule and advocating for exceptions within the proposed Act. He advocated for exceptions within the proposed Act, especially for sites like the birthplace of Lord Krishna and the Vishwanath temple, reconstructed during Aurangzeb's reign. Despite efforts to include exceptions, the House rejected the proposed amendments.

The Parliament passed the bill with certain amendments discussed and accepted by the members7 and the Act came into existence on September 18, 1991. Certain provisions of the 1991 Act take effect immediately, while the rest of the provisions are considered to have come into force on July 11, 1991.8 During the 1991 deliberations, the legislature emphasized secularism's crucial role in India's unity and integrity. Their proposal aimed to preserve the historical integrity of religious sites since independence, showing foresight in averting past communal tensions.

The legislature showed a keen awareness of societal challenges, including hunger, backwardness, and regionalism. Their view of secularism emphasized equal respect for all faiths, demonstrating a profound understanding of religious coexistence.

They advocated for separating religion from political maneuvers, promoting peaceful negotiations and legal actions for effective conflict resolution.

By invoking traumatic historical events like the worst communal riots and the 1946–47 partition, they underscored the need to prevent repeating past tragedies.

6. Places Of Worship (Special Provision Bill), September 9,1991;Pg-52;
7. Supra 9
8. Sec-1, commencement; The provisions of sections 3, 6 and 8 shall come into force at once and the remaining provisions of this Act shall be deemed to have come into force on the 11th day of July, 1991

The Places of Worship Act, 1991 has recently come under scrutiny due to its potential impact on justice for affected communities9. This particular section examines the Act's constitutionality, its alignment with fundamental rights and international norms, and its role in balancing religious and cultural rights aligning it and comparing it with Articles 2110, 2511, 2612, 2913, and 3014 of our Indian constitution.

The Act's constitutionality under Article 21, which safeguards life and personal liberty, is paramount. It enhances human dignity by preserving the sanctity of places of worship. As articulated in Maneka Gandhi v. UOI15, Article 21 encompasses the right to live with human dignity. Sections 2 to 4 of the Act amplify this principle, safeguarding religious character and preventing acts that undermine faith, thus elevating the collective dignity of believers.

In this regard, one may refer to two key international law based documents: (1) Universal Declaration of Human Rights UDHR Article 1816; (2) General Assembly Resolution 55/254, which focuses on safeguarding religious sites17 and was endorsed by India in 2001.

The resolution begins by strongly condemning any acts or threats of violence, destruction, damage, or endangerment directed towards religious sites worldwide.18 Furthermore, the resolution urges states to implement adequate measures aimed at preventing such acts or threats of violence. It also extends an invitation to relevant intergovernmental and non-governmental organisations to actively contribute to these efforts by developing suitable initiatives in this critical area of protection.19

9. Constitutionality of the Places of Worship Act; Ashwini Kumar Upadhyay v Union of India (WP (C) 1216/2020)
10. Protection of life and personal liberty, Part-3; Article 21, No person shall be deprived of his life or personal liberty except according to procedure established by law.
11. Right to Freedom of Religion, Part-3; Article 25. Freedom of conscience and free profession, practice and propagation of religion
12. Right to Freedom of Religion, Part-3; Article 26. Freedom to manage religious affairs
13. Cultural and Educational Rights, Part-3; Article 29. Protection of interests of minorities
14. Cultural and Educational Rights, Part-3; Article 30. Right of minorities to establish and administer educational institutions
15. AIR 1981 SC 746
16. UN Human Rights Committee (HRC), CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4, [accessed 2 October 2023]
17. Calling for Greater Efforts to Promote Culture of Tolerance, General Assembly Adopts Resolution Condemning Offences against Religious Sites; GA/12310; 21 January 2021;
18. Fifty-fifth session Agenda item 32; 55/254. Protection of religious sites; Resolution adopted by the General Assembly; Para 1
19. Supra 11

The 1991 Act, under Articles 25 and 26, upholds constitutional scrutiny by preserving religious harmony and preventing conflicts within religious groups.

Article 25 ensures religious freedom with reasonable restrictions. Section 3 handles internal disputes. Article 25(2) empowers state regulation of secular activities tied to religion. Court cases like Romesh Thappar case20 define "public order," while M.P. Gopalakrishnan Nair case21 support state's authority to enact laws promoting social welfare. Article 26(d) safeguards management rights, fostering religious harmony.

Examining the Act's constitutional validity in safeguarding minority cultural rights under Article 29(1), Justice M.N. Venkatachaliah22 emphasizes preventing fragmentation in plural societies. Lord Scarman's stance on “Minority Rights in a plural Society”23 supports preventing disintegration within diverse groups. Objections claiming the Act infringes on cultural rights are addressed by understanding Article 29(1), protecting any citizen section with distinct culture.

Francesco Capotorti, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination & Protection of Minorities24 defines 'minority' as numerically inferior groups preserving their culture. The Act ensures the unchanged religious character of worship places since August 15, 1947, for all citizens, without favouring specific communities.

CJI B.N Kirpal's judgment in T.M.A. Pai Foundation & Ors25 reaffirms that determining minority status considers the source and territorial application of legislation. The Act doesn't impede minority cultural rights; it safeguards their cultural heritage by preserving the initial religious character of places of worship.

20. Romesh Thappar vs. The State of Madras 1950 AIR 124, 1950 SCR 594
21. M.P. Gopalakrishnan Nair & Anr vs. State of Kerala & Ors CA 6675/1999
22. The Indian Advocate Journal for the Bar Association Plural Societies: Man’s Neurological Compulsions; Justice M.n. Venkatachaliah; P.41; Last accessed on 29th January
23. Minority Rights in a Plural Society, P.63; Last accessed on 29th January
24. Study on the rights of persons belonging to ethnic, religious and linguistic minorities / by Francesco Capotorti, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities; Geneva: UN, 1979. E/CN.4/Sub.2/384/Rev.1, para. 568; Last accessed on 29th January
25. T.M.A. Pai Foundation & Ors vs State of Karnataka & Ors ((2002) 8 SCC 481)

In essence, the Places of Worship Act, 1991, upholds Article 29(1) by ensuring the religious character of worship places remains intact. It embraces pluralism and protects cultural diversity while preventing disintegration. The Act doesn't infringe on minority rights; instead, it fortifies their cultural identity by safeguarding their places of worship. Dr. M. Ismail Faruqi case26 underscores measures to curb communal tension and promote accord as essential of secularism.

In conclusion, the Act, under Articles 25, 26, and 29(1), acts as a constitutional safeguard, balancing religious rights, cultural preservation, and communal harmony, reinforcing India's commitment to a harmonious coexistence of diverse beliefs.

The Section 4 of the Act aims to preserve the religious character of worship places as of August 15, 1947. While safeguarding these places, legal proceedings on conversions are managed, with an exception for ongoing cases initiated post-August 15, 1947. Proviso to Section 4(2) safeguards suits linked to post-cut-off date conversions. The Act limits citizen’s rights by resolving appeals post-commencement but doesn't negate judicial review entirely.

During the Lok Sabha debates on the rationality of the limitation period of the Act27, it was stated that this limitation aims at constitutionally healing past injustices and ensuring places of worship remain unchanged. The Preamble underscores safeguarding constitutional principles, emphasizing freedoms akin to Bijoe Emmanuel case28. Courts presume that the legislature grasps people's needs, grounded in experience and sound reasons, as per Mohd. Hanif Quareshi29.

Hamdard Dawakhana case30 reinforces this, considering history, purpose, circumstances, and remedy to ascertain an enactment’s constitutionality. The Act’s goal was moving away from pre-independence communal divisions, fostering post-independence amity. The Act advances secularism, safeguarding worship places for national progress.

The objection to the cut-off date, the independence date, was meticulously scrutinized. The authority's power to set it is inherent in regulatory control, not inherently unconstitutional. In Hirandra Kumar case31, the Supreme Court stressed a cut-off's constitutionality hinges on rationality, thereby violating Article 14. Courts avoid altering dates within executive or legislative purview, noted in Sanjay Kumar Thakur case32. A chosen date needn’t be explicitly justified if not capricious, per State of West Bengal vs. Ratan Behari Dey33.

India's Independence Day cutoff prevents disputes and revives forgotten controversies, symbolizing its modern, democratic, and secular values. Declaring it unconstitutional requires a significant breach of constitutional principles. The Act's constitutionality justifies limited judicial review, affirming its reasonable enactment, upholding justice, equality, and religious harmony.

In conclusion, the Act safeguards places of worship, aligning with Articles 14, 15, 21, 25, 26, and 29, and upholds secularism. Constitutional challenges demand substantial evidence, not mere arbitrariness. The Act's purpose, Independence Day cut-off, and limited judicial intervention find justification. It respects human dignity, brotherhood, and diverse faiths' equality, echoing Srimati Malini Bhattacharya's34 perspective on independence marking India's transition into a modern, democratic, and secular nation valuing religious rights. This perspective can guide future disputes, upholding our nation's core values of secularism.

26. Dr. M. Ismail Faruqi vs. UoI & Ors ((1994) 6 SCC 360)
27. Lok Sabha Debates, Vol. V, Nos. 41-49, pp. 443-444
28. Bijoe Emmanuel vs. State of Kerala ((1986) 3 SCC 615)
29. ((1957) SCC OnLine SC 17).
30. Hamdard Dawakhana v. Union of India 1959 SCC OnLine SC 38
31. Hirandra Kumar vs High Court of Judicature at Allahabad 2019 SCC On Line SC 254
32. Sanjay Kumar Thakur vs North Delhi Municipal Corporation of Delhi (W.P.(C) 5828/2016).
33. ((1993) 4 SCC 62).
34. Places of Worship BHADRA 19.1913 (SAKA) (Special Provisions) Bill September 10, 1911 Pg.444;


The case surrounding the Gyanvapi compound and Shahi Idgah Mosque in Varanasi emerges as a poignant illustration of the intricate dynamics at play in the realm of religious and cultural heritage. This Section of the paper aims to critically analyse the judicial paradigm in the Gyanvapi and Shahi Idgah Mosque cases, focusing on the interpretation of the Sec 4 of the 1991 Act, and its implications for religious disputes.

The Gyanvapi compound in Varanasi is at the centre of a dispute between Hindu and Muslim communities regarding its ownership and religious significance. In 1991 Lord Vishweshwar's devotees (Plaintiff) filed a suit35 seeking rights to worship and ownership, claiming the structure was part of an ancient Hindu temple. The plaintiff specifically sought a declaration for specific areas in the Gyanvapi compound, believing it to be the entire area of the temple of Lord Adi Vishweshwar (Swayambhu) since ancient times.

The Plaintiff in 2019 moved an application before the trial praying for the relief that survey of premises in dispute be conducted by Archaeological Survey of India36. The application was allowed in 2021 by the Lower court37. The Lower court in its order stated;

35. Swayambhu Lord Vishweshwar & ors vs. Anjuman; Suit. No.610 of 1991,Varanasi court
36. Application No:266-Ga moved by the plaintiffs on 10.12.2019
37. Disposal of Application No:266-Ga, Original Suit Number: 610/1991; CNR No:UPVR-05-000011-1991; Order passed by presiding officer on 8th April, 2021

“The aim of the archaeological survey was to determine the nature and origins of the current religious structure at the disputed site, investigating whether it overlays any pre-existing Hindu temple. It seeks to establish the age, size, and architectural details of the present structure, explore the existence of prior Hindu temples, and identify connections with artifacts mentioned in legal documents, providing crucial insights for resolving the dispute.”

The defendants, Anjuman Intezamia Masjid & the U.P. Sunni Central Board of Waqfs on the opposing side, contested the trial court's ruling before the Allahabad High Court. They question the revisional order and the trial court's decision. They raised the issue that the complaint is liable to be rejected under Order 7, Rule 1138 CPC39 application, due to it being barred by the Places of Worship (Special Provisions) Act, 199140 Section 441?"

Additionally, they challenge the Civil Judge's directive for an Archaeological Survey of India (ASI) study in the original suit. These challenges encompass various issues, including the interpretation of the 1991 Act42, procedural decisions, and the direction for archaeological surveys.

The defendants argued that according to the 1991 Act, the religious character of any place of worship as it existed on August 15, 1947, must remain unchanged. They emphasized that the mosque in question has been used for Muslim prayers since August 15, 1947, and therefore, it should continue to be a mosque. They also said that the 1991 Act prevents it from being converted into a temple, as mentioned in Section 4 of the Act.

On December 19, 202343, the Allahabad High Court took both sides arguments into consideration and passed the judgement.

38. Order 7, Rule 11 CPC; Rejection of plaint
39. The Code of Civil Procedure, 1908 (Act No. 5 of 1908)
40. The Places Of Worship (Special Provisions) Act 1991 No. 42 of 1991 [18th September, 1991]; 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; Accessed from Last Accessed on 7th February,2024
41. Sec-4; Declaration as to the Religious Character of Certain Places of Worship & Bar of Jurisdiction of Courts, etc.
42. The Places Of Worship (Special Provisions) Act 1991; here in referred as the ‘ 1991 Act’
43. U.P. Sunni Central Waqf Board vs. Ancient Idol of Swayambhu Lord Vishweshwar & Ors. (2023 SCC OnLine All 2760)

The court, in its judgement, directed ASI to conduct a detailed survey to discern if the present structure was constructed over a pre-existing temple. The judgement concluded that the 1991 suit wasn't barred under Section 4 of the 1991 Act as the religious character of the temple is not defiant, emphasising that the compound couldn't simultaneously have Hindu and Muslim characters. The court urged expedited proceedings within six months, dismissing related cases, applying the ASI survey from another case, and stressing the urgency of resolving the dispute.

While the judgment initially aimed to resolve the dispute by permitting the ASI survey on the alleged mosque grounds, providing both parties an opportunity to clarify the property's religious nature, it overlooks the potential repercussions. The court believes this survey will quell communal tensions, offering closure to the longstanding conflict. However, the decision fails to anticipate that the ASI report might intensify the already escalating communal discord.

The court's decision initially overlooked the comprehensive objectives and intentions of the legislators while drafting the 1991 Act. It failed to grasp the potential chaos that the legislators aimed to prevent for our country's future.

The court's ruling, based on technical grounds, sets a precedent that could be cited in numerous cases seeking the restoration of disputed places of worship that were previously destroyed and repurposed for other religions' worship. This precedent is poised to become a pivotal factor contributing to communal tensions in our country.

The Key legal issues in these cases include the interpretation of the Sec 4 of the 1991 Act, which aims to prevent litigation over religious conversions of places of worship that existed before August 15, 1947. Additionally, questions arise regarding the application of Section 4(3) of the Act and the implications of conducting archaeological surveys to determine the religious character of disputed sites.

The denial of the applicant's plea, asserting that the plaintiffs' suit isn't barred by Section 4 of the 1991 Act and can't be rejected under Order 7 Rule 11 C.P.C., signals the first misstep in a series of erroneous decisions. This research aims to unravel complexities, propose solutions, and promote communal harmony and legal clarity.


The court’s rejection of the application of Order 7 Rule 11 was based on the argument that the plea doesn’t contradict the law, highlighting Section 4 of the 1991 Act, which lacks a defined characterization of the religious character of places of worship. To establish the faultiness of their decision in this aspect, the first step is to demonstrate that the plea indeed conflicts with the law. To achieve that, a thorough understanding of the 1991 Act and its overarching objectives is imperative which has been explained explicitly in the above section 2 of the Article.

The court's position appears to be influenced by the lack of clear definitions or explicit clarity within the 1991 Act regarding how to determine the religious character of a place of worship as existed on the date of independence. This ambiguity has led the court to express its inability to decisively resolve ‘Issue No. 2’44 solely based on Section 4 of the 1991 Act.

The court emphasizes that adjudication on this matter is contingent upon the evidence and assertions presented by the involved parties. Notably, if the Act had unambiguously defined the religious character of places of worship as of 1947, it would have simplified the resolution of ‘Issue No. 2’45 under Section 4.

Additionally, the court references the Din Mohammad case46, indicating that the ruling in that case did not establish the religious character of the disputed place; it merely allowed the plaintiffs therein to perform Namaz in the alleged Mosque. This reference suggests that the previous case doesn't serve as a definitive precedent for determining the religious character of the site in question.

The court's oversight regarding the continuity of Muslim prayers at the disputed site, even after the alleged destruction of the Hindu temple, underscores an essential aspect. The presence of a mosque, even if established post the temple's destruction, remains significant as it continues to serve as a place of worship, albeit for a different faith.

While acknowledging certain ambiguities within the Act, the court missed an opportunity to apply the mischief rule in its interpretation while trying to acknowledge the word ‘Religious Character’ lacks definition in the 1991 Act.

Derived from Heydon's Case47 in 1584, the mischief rule aims to address legislative ambiguities, emphasizing the suppression of problems and the advancement of solutions. This rule considers various elements such as the state of common law before the Act's enactment, the defects that the common law failed to address, the remedy devised by Parliament, and the underlying intention behind the remedy.

However, courts must not overlook the clear and natural meaning of the words or their context while applying this rule, as emphasized in the case of Umed Singh v. Raj Singh48.

44. Is the plaint liable to be rejected under Order 7 Rules 11 CPC due to it being barred by Section 4 of the Places of Worship (Special Provisions) Act 1991? Framed by the trial court after perusal of the pleadings of the parties
45. Supra 10
46. Din Mohammad v. Secretary of State; Civil Appeal No. 466 of 1937
47. Heydon's Case [1584] EWHC Exch J36 (01 January 1584);
48. Shri Umed vs Raj Singh & Ors on 28 August, 1974 (1975 (1) SCC 76)

Additionally, the Supreme Court clarified in Sodra Devi's case49 that the rule applies only when the words in question exhibit ambiguity. Overall, applying the mischief rule might have provided a clearer perspective on the legislative intent and aided in interpreting the law in question.

The legislatures during the whole parliamentary debate were trying to avoid any other case regarding the past injustice be dragged in the court. To address this, the legislature explicitly stated in the Act that its objective is to prevent legal disputes over the conversion of religious places of worship that occurred pre-independence. It states that any ongoing case related to such conversions shall cease, and no new cases on this matter shall be entertained after the Act's commencement. However, if a case on post-1947 conversions is already pending, it shall be resolved under the Act's provisions.

The mosque's conversion into a temple took place in 1669, as documented in “Ma-Asir-i-Alamgiri”50 by the Asiatic Society of Bengal in 1871, long before India's independence. Despite being fully aware of the historical context, the legislature opted to exclude the temple-mosque dispute from Section 5 of the 1991 Act, similar to the Ram Janmabhoomi case. Even when questioned repeatedly, they remained resolute in this decision.

49. The Commissioner Of Income-Tax,Madhya ... vs Sodra Devi(With Connected Appeal) on 17 May, 1957 Equivalent citations: (1957 AIR 832)
50. Maasir-I-Alamgiri; A History of the Emperor Aurangzeb Alamgir(reign 1658-1707 A.D.); By, Saqi Mustaid Khan; Royal Asiatic Society of Bengal; 1947

Had the legislature explicitly stated in the Act that the court must determine the religious character of disputed places resulting from past wrongdoings, it would have undermined the Act's entire purpose. The Act's intention was to prevent disputes over places of worship from surfacing in courts, not to mandate their determination through legal proceedings based on parties' pleadings and evidence. Such explicit instructions would have contradicted the Act's fundamental aim and defeated its purpose.


In the judgment the plaintiffs' counsel argued against the applicability of Sections 3, 4(1), and 4(2) of the 1991 Act, citing a non-obstante clause in Section 4(3)(d). They emphasized that Section 4(1) and 4(2) wouldn't apply if the conversion of a place occurred before the Act's commencement through acquiescence.

This argument relied on Section 4(3)(d) , suggesting that the forcible act of the Mughal Emperor in demolishing a temple and subsequently constructing illegally wouldn't hinder the maintainability of a suit. Essentially, the Act doesn't prohibit parties from seeking legal recourse post-enactment, especially in cases where conversion happened pre-Act and there was no prior legal action due to acquiescence.

The plaintiff’s argument and the legislative intent regarding Section 4(3) of the Act seem to differ in interpretation, particularly regarding conversions of places of worship that have occurred much before the commencement of the 1991 Act.

As per the plaintiffs' counsel interpretation, Section 4(3)(d) allows parties to approach the court for redressal even in cases where conversions occurred long before the Act came into effect, and the affected party hadn't approached the court earlier. This provision suggests that silence or acquiescence in such cases wouldn't bar the affected party from taking legal action.

On the other hand, during the enactment of the Act, there was a debate raised by Shri Indrajit Gupta51 regarding places of worship that were converted into uses other than forms of other religions, such as houses, cow sheds, or cattle sheds. The concern was whether these types of conversions were covered by the Bill.

The response from the legislature affirmed that such conversions, including those not converted into forms of other religions52 but into different uses like residences or sheds, were indeed covered by Section 4 (3) of the Bill. This section includes disputes regarding any conversions of places by acquiescence, regardless of the nature of the conversion.

The legislation addresses various conversions, including changes in uses, not just religious alterations. Section 4(3) permits disputes by acquiescence, safeguarding legal action rights despite acceptance. This provision protects recourse for conversions between independence and the Act's enactment on July 11, 1991. Had the cut-off date included all historical conversions, like Emperor Aurangzeb's, would deviate from the Act's core objective of preserving communal harmony.

Regarding the discrepancy between the court's decision and the legislature's clarification, it seems there might be a difference in interpretation or understanding of the Act's provisions. The plaintiffs' may have held a different view or might not have considered these types of conversions under Section 4(3) while interpreting the Act.

In 1997, the Home Affairs Minister acknowledged challenges53 to the status of places of worship, including the Kashi Vishwanath Temple - Gyanvapi Masjid in Varanasi & the Krishna Janmabhoomi - Shahi Idgah Masjid in Mathura, asserting that they are covered by the provisions of the 1991 Act. The Central Government advised the Uttar Pradesh State Government to safeguard these shrines and maintain communal harmony. This was reaffirmed on June 2, 199854, when the matter was revisited.

This acknowledgment underscores the relevance and applicability of the Act in addressing disputes concerning places of worship, emphasizing the importance of preserving communal harmony and respecting religious sentiments.

51. Places Of Worship (Special Provision Bill);; September 9, 1991
52. Places Of Worship (Special Provision Bill);; September 9, 1991
53. Prosecutions made under Places of Worship (Special Provision) Act, 1991; SHRI E.AHAMED: SHRI G.M. BANATWALLA;; MAY 6. 1997
54. Worship (Special Provision) Act, 1991;; June 2, 1998


The Allahabad HC judgment of December 202355 sets a problematic precedent for determining pre-1947 worship places' religious character. The question should be asked as to what would happen if the ASI survey proved that there existed a Hindu temple that was destroyed and over which the mosque was constructed? Then the public will put emphasis on the restoration of that Hindu temple, like the Ram Janam Bhoomi56, which was restored and reconstructed. Parliament, given the current political landscape, could make exceptions for Kashi Vishwanath and Krishna Janmabhoomi reconstruction57.

This judgment's use as a precedent might trigger a ample amount of cases across districts, challenging the religious character of various places, resulting in a chain reaction which will be poignant for our cultural harmony.

Instances of mosques converted to temples, like Jama Masjid in Farrukhnagar, and others in Maharashtra & Haryana58, contribute to this complexity. These structures, previously mosques and now temples, raise questions despite being state-protected monuments. Such cases underscore the evolving Mandir-Masjid debate, presenting challenges beyond mere hearsay.

India, being a home for many religious communities for so many years59, is bound by the word secular mentioned in the preamble of its constitution60. Resurrecting the old temples by removing the present temples of different religions will be doing injustice to our own constitution. India is the third country with the largest Islamic population in the world61. India has always promoted the practice of religious-cultural harmony for so many years62. Setting up these kinds of presidents will hamper this harmony.63

55. Supra 10
56. History of Ayodhya Ram Mandir: From 1528 to 2024 - A timeline Last accessed on 29th January, 2024
57. “36,000 temples were destroyed by Mughals”: BJP leader Eshwarappa stokes fresh controversy; KS Eshwarappa has alleged that 36,000 temples were destroyed by Mughals and said all those temples would be restored in a peaceful manner by the government;;Last Accessed on 29th January 2024
58. Mosques turned into Temples, the other side of history; By-Mohammed Mirza ; ; Last Accessed on 29th January 2024
59. Constitution of India. Article 51(A) (e); It shall be the duty of every citizen of India (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;; Last Accessed on 29th January 2024
60. Preamble, the Soul of the Constitution;; Last Accessed on 29th January 2024
61. Muslim Population by Country 2024;; Last Accessed on 29th January 2024
62. Religious Harmony: A Unifying Bond; Swami Mitrananda & Ananthakrishnan Seshadri; last accessed on 29th January 2024
63. India Hindu Temple Opening Stokes Religious Minority Fears Decades-Long Campaign Led to Demolished Mosque, Deadly Communal Riots; Swami Vivekananda’s Speeches (The World Parliament of Religions, Chicago) Sept 27, 1893; Ethics in Vedanta – Harmony or Ekabhava; last accessed on 29th January 2024

The Indian constitution protects the rights of religious minorities through Articles 2564, 2665, 2966, and 3067. The judiciary and government must safeguard these rights ensuring that they are not compromised or taken away. The recent precedent set by the Allahabad High Court judgment regarding the religious character of places of worship before 1947 should be subject to criticism, as it has the potential to undermine the principles of religious freedom and secularism.

India's legal framework strives to uphold the principles of Sarv Dharma Sambhav and Vasudev Kutumbakam, fostering communal harmony and unity amidst diverse religious identities. It is imperative for the government to separate religion from politics, following the examples set by other countries68. By doing so, India can preserve the national atmosphere and nationhood, promoting a harmonious coexistence among its diverse religious communities.

Let us embrace our religious beliefs and practices, but let us refrain from allowing religion to infiltrate the realm of politics. By upholding the principles of religious tolerance, cultural diversity, and secularism, India can continue to thrive as a pluralistic society that respects and protects the rights of all its citizens.

64. Right to Freedom of Religion, Part-3; Article 25. Freedom of conscience and free profession, practice and propagation of religion
65. Right to Freedom of Religion, Part-3; Article 26. Freedom to manage religious affairs
66. Cultural and Educational Rights, Part-3; Article 29. Protection of interests of minorities
67. Cultural and Educational Rights, Part-3; Article 30. Right of minorities to establish and administer educational institutions
68. 80 countries worldwide exhibit a preference for a particular religion, elther by officially endorsing it as the state religion or by providing preferential treatment to one faith over others. Islam emerges as the most commonly endorsed religion by governments, with 27 countries, predominantly in the Middle East-North Africa region, designating it as their official state religion. In contrast, Christianity, or a specific Christian denomination, is recognized as the state religion in only 13 countries, primarily in Europe. Additionally, approximately 40 governments globally offer unofficial support to a specific religion, with Christianity, particularly its various branches, being the most favored faith in 28 countries; last accessed on 29th January 2024

DEVASHISH VASHISTH is a fourth-year law student from Amit Law School, Noida, harbours a profound interest in constitutional law and politics and is dedicated to advocating for human rights. He can be reached at