Gyanvapi and the principle of non-retrogression

News: Recently, the Gyanvapi-Vishwanath dispute has come up in Varanasi and the Shahi Idgah mosque has come up in Mathura in which the petitions are seeking the removal of the mosque and exclusive ownership of the property.

What are the relevant legal statutes?

The Places of Worship (Special Provisions) Act clearly prohibits altering its status quo.

– The Section 3 of the Act bars the conversion of a place of worship of a religious denomination or any of its sections into a place of worship of a different section of the same denomination or of a different religious denomination.

– Section 4 declares that the religious character of a place of worship existing on August 15, 1947 shall continue to be the same as it existed on that day. Any legal case pertaining to the conversion of the religious character of any place of worship pending as on August 15, 1947 shall abate.

Impact of the Babri Masji Judgment

The judgment may have been the beginning of unending demands for the handing over of hundreds of other “disputed” mosques in India.

What are the issues with the judiciary actions?

The Supreme Court has been reluctant to stay such judicial interventions under the Places of Worship (Special Provisions) Act, 1991.

The Court observed that ascertainment of the religious character of a place may not fall foul of Sections 3 and 4 of the Places of Worship Act.

What are the historical facts related to the issue?

There is no disagreement among historians on the fact that the emperor Aurangzeb destroyed the Vishwanath temple and built the Gyanvapi Mosque on its ruins.

Aurangzeb destroyed the temple when he suspected that its builder, Jai Singh, the great grandson of Raja Man Singh, had helped Shivaji escape from imperial detention.

How modern day regimes differ from the earlier ones in terms of deriving legitimacy from religious monuments?

(A) Early Time

According to Eaton, ruling dynasties in those days derived legitimacy from state deities (rashtra devta) installed in royal temples. It was common that conquerors used to destroy such temples and used to place their own place of worship on the ruins. It used to be a message that the king no longer enjoyed the protection of his deity.

(B) Medieval Period- More a show of power

The temple destruction was done more to show brute power than an act of religious bigotry.

(C) Modern Period

The present intellectual regime strongly disapproves of the violent cold-bloodedness and acquisitive expansionism.

In modern societies, the principle of non-retrogression, or the doctrine of progressive realisation of rights, has been adopted.

Way Forward

India is signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Its Article2(1) seeks to “achieving progressively the full realisation of the rights by all appropriate means, including particularly the adoption of legislative measures”.

The Supreme Court has reiterated the principle of non-retrogression in a number of cases. For example, (a) in Navtej Singh Johar judgment 2018 , the court held that there is no place for retreat in a progressive society. Therefore, the state should not take steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise”, (b)  in Babri Masjid verdict 2019, it was mentioned that non-retrogression “is a foundational feature of the fundamental constitutional principles of which secularism is a core component”. The Act is thus “a legislative intervention which preserves non-retrogression as an essential feature of our secular values”.

The Supreme Court of India must ensure the continuity of this doctrine of progressive realisation of rights

The historical wrongs cannot be remedied by people taking the law into their own hands. Through the Places of Worship Act, Parliament has mandated that histroical wrongs shall not be used as instruments to oppress the present and the future”.

The Parliament must retain the Places of Worship Act without amending or repealing it.

Source: The post is based on an article “Gyanvapi and the principle of non-retrogression” published in the “The Hindu” on 27^th May 2022.