Sunday, October 2, 2022

Qutub Minar Complex: History Lessons

A Delhi Court has rejected a plea to rebuild the temples inside the Qutub Minar complex while observing that “mistakes of the past cannot be grounds for disturbing the present peace”.

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Civil Judge (South) Neha Sharma recently rejected a civil suit seeking restoration of Hindu and Jain deities inside the Quwwat Ul Islam mosque located at the Qutub Minar complex in Mehrauli, New Delhi. The civil suit filed on behalf of Hindu deity Lord Vishnu, Jain deity Tirthankar Lord Rishabh Dev and others, sought restoration of 27 Hindu and Jain temples which were allegedly “dismantled, desecrated and damaged under the command and orders of Qutub-ud-din Aibak”. Quwwat-Ul-Islam was declared a protected monument, under Section 3 of Ancient Monuments Preservations Act, 1904, on January 16, 1914.

The plaintiffs said that Delhi was ruled by Hindu Kings up to 1192 when Mohammad Gauri invaded and defeated Prithiviraj Chauhan in the battle in 1192 AD. Thereafter, Qutb-ud-din-Aibak a commander of Mohammad Gauri dismantled/destroyed the Jain and Hindu temples along with the constellation of respective deities and construction was carried out within the temple complex. The temple complex was renamed as “Quwwat-Ul-Islam mosque, which means “might of Islam”.

However, Qutb-ud-din-Aibak failed to completely demolish the existing temples and only partial demolition was carried out for building the mosque. The plaintiffs claimed that one could still see images of gods and goddesses, including religious Hindu symbols and deities like Ganesh, Vishnu, Yaksha, Yakshini, Dwarpal, Lord Parshvanath, Lord Mahavir, Nataraj, and symbols like mangal kalash, shankh (conch), gada, lotus motifs, Shri Yantra, temple bells and sacred lotus, etc on the walls, pillars and roof of the existing building.

The plaintiffs further said that since pictures of Hindu gods and goddesses, Jain Tirthankaras and architectural designs of Hindu/Jain temple were clearly visible on pillars, walls, roof, bracket, staircase and several other places, the mosque was later abandoned. They alleged that the only purpose behind demolition was to demoralise the Hindu and Jain devotees and subjects residing there and make them feel that they had been crushed by the Islamic forces. They said that the Hindu and Jain devotees regularly visit the temple occupied by the mosque and pay homage to deities and destroyed idols which is a matter of national shame. They argued that it was clear that a number of temples with deities were existing within the temple complex before the construction of the mosque and it remained a Hindu religious property and the Muslims never declared the place as Waqf property before or after the mosque was constructed.

The Court said that the law with regard to Order VII Rule 11 the Civil Procedure Code (CPC) was well settled. While dealing with an application for rejection of a plaint under Order VII Rule 11 CPC, the Court has to consider only the averments made in the plaint and not the defense of the defendant or the contents of the application under Order VII Rule 11 of CPC.

The Court further said that if the allegations were vexatious and meritless and did not disclose a clear right or material to sue, it was the duty of the trial judge to exercise his/her power under Order 7 Rule 11. If clever drafting created the illusion of a cause of action, it should be nipped in the bud in the first hearing itself by examining the parties under Order 10 of CPC.

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The Court held that, in a suit for declaration, any person entitled to any legal character or to any right as to any property may institute suit against any person denying or interested to deny his title to such character or right, where the Court may in its discretion make a declaration that he is so entitled. Hence, foremost it is required to be tested if plaintiffs were entitled to any legal character or to any right which they could enforce by way of relief of declaration.

The Court observed that the rights under Article 25 and 26 of the Constitution have to be exercised subject to just exceptions created. It said that the suit property is a mosque built over temples and is not being used for any religious purpose, no prayers/namaz is being offered in the suit property. Hence, the judge said that plaintiffs do not have an absolute right to restoration and worship in the suit property as public order, which is an exception to Article 25 and 26 and requires that status quo be maintained and protected monuments be used for no religious purpose.

The Court said that the contention of the plaintiffs that Section 4(3)(a) of the Places of Worship Act, 1991, excludes an ancient and historical monument or an archaeological site or remains covered by the AMASR Act, and hence, the suit is not barred under the Places of Worship Act, 1991, would, in the Court’s opinion, frustrate the purpose of the Act itself.

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Section 4(3)(a) has to be seen in the larger context of the Places of Worship Act. The object of the Act is 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, the Court said.

The Court observed: “Hence, such ancient and historical monuments cannot be used for some purpose which runs counter to its nature as a religious place of worship, but it can always be used for some other purpose which is not inconsistent with its religious character. Hence, the Court said that once a monument has been declared to be a protected monument and is owned by the government, the plaintiffs cannot insist that the place of worship must actually and actively be used for religious services.

The judgment said that every endeavour should be made to enforce the objective of the Act. The purpose of the Act was to maintain the secular character of this nation. “Our country has a rich history and has seen challenging times. Nevertheless, history has to be accepted as a whole. Can the good be retained and bad be deleted from our history? Thus, harmonious interpretation of both the statutes is required to give full force to the objective behind the Places of Worship Act, 1991,” the Court said.

The Court stated that there is a presumption of correctness in every official act. The notification, dated January 16, 1914, has not been challenged till date. Even plaintiffs have not challenged the validity of the said notification. Consequently, it stands valid. Hence, as per the provisions of the Act, the ownership lies with the government and the plaintiffs have no right to claim restoration and right to religious worship in the same without challenging the notification itself.

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The Court said India has had a culturally rich history. It has been ruled over by numerous dynasties. Nobody has denied that wrongs were committed in the past but such wrongs cannot be the basis for disturbing peace in our present and future, the Court said after the plaintiffs raised the issue of national shame.

The Supreme Court in its judgment in the Ayodhya case has beautifully penned down:

“The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution. There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.”

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—By Adarsh Patel and India Legal Bureau

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