– Mohd Naushad Khan
The Jama Masjid, Parliament Street has recently received a notice from the Union Ministry of Housing and Urban Affairs. As per the notice served on August 18, inspection of the Masjid, in compliance of a Delhi High Court directive, was conducted on August 21.
The notice asked the “occupant of the property to maintain preparedness and submit documents/maps to substantiate their claims during the inspection.” However, the Imam of Jama Masjid Muhibullah Nadwi claims the mosque is not in danger and there are legal documents to support the claim. The big question is: Will Parliament respect its own law (the Places of Worship Act, 1991) while dealing with Jama Masjid near Parliament?
According to Dr Narender Nagarwal, who teaches law at Delhi University, “The central government’s move to inspect and issue of notice to substantiate ownership documents for the Jama Masjid, situated near the Parliament House, is regarded as an unlawful and capricious effort to seize control of the Mosque. Any actions taken by the Ministry of Housing and Urban Development or NDMC (New Delhi Municipal Council) to interfere with the peaceful possession of this historic mosque could lead to unwarranted discord and communal tensions.”
He further said, “The law pertaining to land and Wakf, Transfer of Property Act and specifically the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act of 2013, is definitive in stating that there is no dispute regarding the ownership of Jama Masjid and its property rights are indisputable. Additionally, the mosque is considered a heritage building due to its 350-year history.”
Dr Nagarwal maintained, “The act of acquiring heritage properties by circumventing established legal norms, such as the Transfer of Property Act, is a cause for concern regarding the rule of law and due process under the present regime. These laws exist to guarantee fair and transparent transactions that protect the rights of both the property owner and the acquiring party. Illegal acquisitions not only establish a perilous precedent but also undermine the fundamental principles of property rights and transactions in the country.
“The illegal acquisition of heritage properties, religious monuments and places of worship poses a significant threat to India’s secularism, a fundamental aspect of the country’s democracy that promotes equality and respect for all religions. Such acquisitions linked to specific religious communities, especially minorities may convey a message of prejudice towards minorities, which can harm the trust and harmony required for a diverse society.”
Dr Nagarwal opined, “It would be worthwhile to relook at the Constitutional provisions regarding such historical places like Article 49 highlights the crucial role of safeguarding monuments, locations, and items of historical, artistic, or cultural value. It specifies that it is the responsibility of the government to safeguard each monument, location, or item of artistic or historical significance. The government is not authorised by any legislation, notice, or scheme to disturb heritage buildings through damage, alteration, destruction, relocation, disposal, or exportation. Additionally, Article 51A (f) of the Constitution states that Indian citizens have certain fundamental duties and it is their duty to value and preserve the rich heritage of India’s composite culture.”
On the role of the government, Dr Nagarwal said, “It is essential for any government to follow the law, maintain secularism, and respect the property rights and protections of its citizens, especially the vulnerable and minorities. When the central government unlawfully takes over heritage properties, it goes against these principles and jeopardizes a fair and just society. It is crucial for citizens, legal institutions, and civil society to speak up and demand accountability to prevent such actions from becoming common in the governance of the country.”
Sanjay Parikh, a senior lawyer, said, “Any Waqf property is protected by the Waqf Act and once a Waqf always is a Waqf and therefore it can neither be acquired by the government nor can it be demolished. Waqf property even if it is acquired will only be acquired for the Waqf.”
Sanjay Hegde, a senior Supreme Court lawyer, said, “The mosque has historically been there for 300 years and is thus protected by the Places of Worship Act of 1991. However, any department of government is entitled to reassure itself about the necessary documentation.”
The debate on Places of Worship (Special Provisions) Act, 1991 has once again started in the backdrop of Jama Masjid, Parliament Street and other Mosques. It has started controversy amid claims and counter claims on the centuries-old mosque as well as some other mosques in the country. Many are also apprehensive that the Government may go for some kind of amendment to the Places of Worship Act 1991. The Supreme Court will have to play a bigger role as the Custodian of the Constitution.
The 1991 Act prohibits “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”. The Act “extends to the whole of India except the State of Jammu and Kashmir.”
As per Section 3 of the 1991 Act, “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”
And Section 4(1) of the Act further clarifies it in no ambiguous terms: “It is hereby declared that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.”
However, this Act was not applicable to the Babri Masjid case. It is strongly hoped that the Government while abiding by the provisions of the Places of Worship Act, 1991 would deal with any kind of controversy related to the places of worship be it Jama Masjid at Parliament Street or at Kashi, Mathura or elsewhere and maintain the religious nature of the said places as on 15th August 1947.
