1991 law doesn’t apply to Bhojshala, rules Madhya Pradesh HC

THe Madhya Pradesh heights margaret court on fri stated the disputed Bhojshala Temple-Kamal Maula Mosque coordination compound in Dhar as a temple of Goddess Saraswati, ruling that the statutory freeze imposed by the Places of Worship Act, 1991 would not apply to it since it is a protected ancient monument governed by a different law. While deciding the character of the structure, the high court held that the 1991 law applies only to suits and bars alteration in the religious character of any place of worship. In the present case, since the HC was deciding writ petitions seeking enforcement of fundamental rights of citizens under Article 226 of the Constitution, the ruling held that the constitutional power of the high court cannot be overridden by the legislation.A writ petition is filed to enforce fundamental rights and challenge unconstitutional actions of the State; a suit is filed to enforce private rights arising from contracts.The ruling is significant as the mosque committee had challenged the maintainability of the petitions by members of the Hindu community that in turn challenged an order of the Archaeological Survey of India (ASI) of April 7, 2003 permitting namaz to be offered at the mosque. The lawyers for the mosque committee held that under the 1991 Act, as on August 15, 1947 the place was a mosque and section 4 of the 1991 law freezes the religious character of this place of worship as on that day. The high court bench of justices Vijay Kumar Shukla and Alok Awasthi disagreed: “Under Section 4(3) of the Places of Worship (Special Provisions) Act, 1991, monuments governed by the 1958 Act are excluded from its operation. Hence, the 1991 Act does not apply to this monument, and cannot be used to claim fixed religious status.” The 1958 law refers to the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act).The court noted that the structure qualifies as an ancient monument due to its historical and archaeological significance under this law.The Hindu petitioners cited the same rationale in their arguments.The court examined the 1958 Act and the 1991 Act before arriving at the conclusion.Section 4(2) of the 1991 Act states, “If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.”The high court culled out the two essential aspects of the Act, i.e., ‘change of the character’ of the religious place of worship and ‘suits’ or other proceedings pending on the day when the 1991 Act was passed.Justifying the exclusion of the present set of petitions from the 1991 Act, the court said: “In the present cases, the issue is not relating to the title of the property but for the claim of fundamental right of worship or prayer. No claim to title on the disputed area is claimed in these petitions.”Since the petitions were filed under Article 226 (which allows courts to issue writs to enforce fundamental rights), the court said: “It is axiomatic the same does not apply to the extraordinary jurisdiction of the high court under Article 226 of the Constitution of India. The power of the high court under Article 226 of the Constitution of India for enforcement of fundamental rights or any other purpose even otherwise cannot be overridden by any legislation. Power of judicial review is basic structure of the Constitution of India.”It went on to conclude, “Considering the nature of the petitions, reliefs and various notifications, ASI reports and subsequent orders by the Supreme Court, it is held that the petitions are maintainable”.The 1991 Act is under challenge in a set of petitions before the Supreme Court. In these proceedings, an interim order was passed by the top court on December 12, 2024 barring any court from registering fresh suits or passing any effective interim or final order, including direction for survey, till final orders are issued in the pending proceedings.Incidentally, the lawyers appearing for Kamal Maula mosque had cited this order in a bid to restrain further hearing of the petitions by the high court. But the court said that this applies to suits and not to writ petitions under Article 226. Further, in respect of the Bhojshala-Kamal Maula mosque complex, it was the Supreme Court which issued an order in January asking the high court to decide the matter by examining the ASI survey report.These reasons weighed with the court while concluding that the disputed area of Bhojshala-Kamal Maula Mosque is a protected monument under 1958 Act with effect from March 18, 1904 over which ASI shall have full supervisory control. Since the religious character of the area was held to be a temple of goddess Vagdevi (Saraswati), the court struck down the ASI order of 2003 to the extent that it permitted offering of prayer by the Muslim community.