The Supreme Court’s interim order of December 12 in the Places of Worship Act case, restraining all courts nationwide from entertaining fresh suits or passing orders to survey mosques to determine whether temple structures lie beneath them, raises profound legal and constitutional concerns. While ostensibly aimed at maintaining peace and public order, the sweeping nature of this directive and the reasoning employed by the three-judge bench of Chief Justice of India (CJI) Sanjiv Khanna and Justices P V Sanjay Kumar and K V Viswanathan leave much to be desired.
The bench’s blanket stay applies to all pending and future suits concerning the Places of Worship Act, 1991, until the Supreme Court finally decides the constitutional validity of this contentious legislation. This effectively halts litigation initiated by Hindu groups seeking the reclamation of religious sites, many of which they claim were altered or destroyed during historical periods. However, the legal adventurism evident in this interim order sets a precarious precedent, signalling that the rule of law can be subordinated to political and societal pressures.
Places of Worship Act: Legal adventurism setting a precarious precedent
Solicitor General Tushar Mehta’s pointed query as to how a civil suit between two parties can be stayed at the behest of a third party remained unanswered even as the bench proceeded to issue a blanket restraint. Courts traditionally act on established legal principles, yet this order seems to derive its legitimacy from statements made across the Bar rather than from an informed appreciation of the facts or a coherent legal framework.
Notably, the bench did not have precise data on how many suits concerning disputed structures are currently pending in courts across the country, yet it proceeded to issue a sweeping stay.
The reasoning behind the interim order stems from the bench’s interpretation of two points — First, that one of the petitions before the Court seeks enforcement of the Places of Worship Act; and second, that one of the issues under judicial scrutiny is whether suits to reclaim religious sites are barred under the Act.
Both these arguments, however, suffer from significant infirmities.
The arguments SC relied on and its shortcomings: Denial of judicial review to Hindus
The Court invoked the 2019 Ayodhya verdict to justify its intervention with both CJI Khanna and Justice Viswanathan referring to the 5-judge Constitution bench ruling which had certain observations on the Places of Worship Act. However, questions remain whether such observations by the Ayodhya bench, being obiter dicta (statements made in passing without binding legal authority) could have been relied upon to impose a nationwide stay on all suits. The Ayodhya bench never adjudicated upon the constitutional validity of the Places of Worship Act, making its comments on the Act tangential at best.
A key criticism of the 1991 Act is its purported denial of judicial review—a fundamental constitutional right. Petitioners challenging the Act argue that it bars individuals from seeking judicial remedies for alleged historical wrongs, effectively stifling their fundamental right to approach courts.
The 1980 landmark judgment in Minerva Mills Ltd Vs Union of India declared judicial review to be an integral part of the Constitution’s basic structure. The Court held: “The power of judicial review is an integral part of our constitutional system, and without it, there will be no government of laws, and the rule of law would become a teasing illusion.”
Yet, by issuing a blanket stay on pending suits, the Supreme Court appears to have inadvertently endorsed the very denial of judicial review that petitioners have challenged as unconstitutional. Instead of taking a prima facie view on the Act’s unconstitutionality or holding its hand until a detailed examination, the Court chose to freeze legal proceedings altogether.
‘Harmony’ over Judicial process and fundamental rights
The Supreme Court’s approach in this matter suggests that its primary objective is to maintain peace and harmony. CJI Khanna’s remarks in the Sambhal case, where he stayed a trial court order allowing the survey of a disputed mosque site, reflect this sentiment. He emphasised the need to maintain public order, making trial court proceedings subject to higher judicial oversight.
While the intent to prevent communal violence is laudable, the method employed raises concerns. Temporary peace achieved by suppressing grievances is unlikely to foster long-term harmony. True peace necessitates addressing the root causes of discontent through lawful, constitutional mechanisms. By sidelining the legitimate grievances of one group, the Court risks emboldening those who use threats of violence as leverage.
The Places of Worship Act was enacted by the PV Narasimha Rao-led Congress government under immense political pressure. The legislation attempted to freeze the religious character of all places of worship as it existed on August 15, 1947, barring litigation on disputes except for the Ayodhya site. Critics argue that this was a political compromise aimed at buying peace by stifling historical grievances through legislative fiat.
But if the design behind the Act was to try and freeze the religious character of places of worship as on August 15, 1947, a three-judge bench of the Supreme Court comprising the then CJI D Y Chandrachud and Justices Surya Kant and P S Narasimha, while hearing petitions against the survey of the mosque in the Gyanvapi complex ordered by a Varanasi court, said in May 2022 that “ascertainment of the religious character of a place is not barred by… the Act”. This did not sit well with certain sections and instantly made the former CJI a thorn in their flesh.
The Supreme Court’s December 12 interim order has lent judicial imprimatur to a controversial piece of legislation without first addressing its constitutionality. It paradoxically echoes the criticism that the Act itself seeks to suppress dissenting voices through legal means and may leave a chilling effect on the exercise of people’s legitimate rights.
The troubling message: Violence can shape judicial outcomes
The interim order also sends a troubling message: that violence, or the apprehension thereof, can shape judicial outcomes. The intervention applications filed by parties opposing the surveys of religious sites cited the loss of lives in Sambhal as a consequence of inaction under the Act. If anything, this amounted to an implicit threat—that failure to enforce the Act could lead to unrest. The Court not questioning such assertions may be interpreted as tacitly legitimizing mob veto.
The violence in Uttar Pradesh’s Sambhal, where a court-appointed committee was attacked, underscores this concern. Instead of asking why a court order was met with violence, the judiciary appears to have acquiesced to the notion that peace is best maintained by suppressing legal claims rather than upholding the rule of law.
The Court’s interim order has emboldened a certain section of the political and “intellectual” ecosystem, which has celebrated the decision while simultaneously targeting those who earlier interpreted the Act differently. Former Chief Justice DY Chandrachud, who took a nuanced view of the Act during the Gyanvapi hearing, has faced unwarranted criticism, reflecting an environment where judicial independence is under constant scrutiny not only from the government but also from pressure groups.
As former CJI Chandrachud aptly noted, judicial independence extends not just to freedom from government influence but also from the influence of interest groups and societal pressures. The Court’s actions in this instance, underline the need to drive this message home again and again given that justice should not only be done but also seen to be done.
The Supreme Court’s interim stay on proceedings related to the Places of Worship Act raises critical questions about judicial overreach, constitutional rights, and the balance between maintaining peace and delivering justice. While the Court’s intent to preserve communal harmony is understandable, its approach risks undermining the very principles of the rule of law and judicial independence that it is tasked with upholding.
By prioritising temporary calm over a deeper resolution of historical grievances, the judiciary has set a precedent that may the judiciary has set a precedent that may have far-reaching implications for the future of constitutional governance and societal reconciliation in India.
