2.2.1 Rajya Sabha on September 12, 1991:
On second day, the said Bill was presented in Rajya Sabha, where members criticized it and raised various concerns.[1] These concerns are still points of conflict on the said Act and even today criticism is done on these points only. Following points must be considered from the Rajya Sabha debates:
1. Implication of the Act: Some members expressed concern over the implications of this Act on ongoing legal disputes, the freedom to convert religious structures, and potential infringement on religious rights. This point was also raised in Lok Sabha since the inception of the Bill i.e. from August 23, 1991, when the Bill was introduced for very first time in the Lok Sabha. The debates here echoed the Lok Sabha’s concerns but also brought forth questions about the practical implications of these provisions. There was discussion on how these provisions would interact with existing legal frameworks, like personal laws or the right to practice religion under Article 25 of the Indian Constitution.
2. Postpone the Problem: There was debate over whether this would solve or merely postpone problems, with some suggesting that it might not address the root causes of communal disputes. Although it is not accepted, but the ground reality of the disputes over places of worship is still existing and followers of Sanatan are exploring ways to claim their cultural and religious heritage which was destroyed by the foreign rulers. Mere putting a bar on the legal dispute does not solve the problem, it just postpones it. This delay in judicial hearing due to enactment of the said Act is raising other communal disputes in the society. If proper medication is not taken on a general viral fever condition on time, then it may become troublesome and may invite other serious condition of the health. The claim of Hindus for their cultural heritage was not wrong at all, the rift created by radicalized groups was the actual illness of the society. The Act was not treating the illness, but making it worse, just like in viral fever case.
3. Confusion on alteration: Some members raised concerns about potential loopholes or the need for further clarification on what constitutes an alteration or modification, especially in cases where religious practices might change over time without changing the denomination. These loopholes created a havoc on ground, these will be pointed out in further discussions.
4. Constitutional Considerations: Debates touched on how this Act aligns with constitutional rights to freedom of religion and whether it infringed upon these rights. The government maintained that the Act was in line with promoting secularism by preventing disputes based on historical claims. Act was meant to preserve only secularism which is mentioned in Preamble of the Constitution. But it is conflicting with fundamental rights and duties, which are enforceable in Court of law.
5. Exceptions and mechanisms: Some members criticized the lack of exceptions or mechanisms for communities to reclaim sites they believed were altered before independence. The counterargument was that such matters should be handled through dialogue and not litigation, to prevent communal flare-ups. But when one radicalized group had prepared for stone-pelting and petrol-bombs, then how peaceful dialogue between two groups will be possible. No such mechanism of out-off court arbitration or conciliation or dialogue is mentioned in the Act.
6. Future Implications: There was considerable discussion on how this would affect future generations and whether this was a permanent solution or merely a temporary stopgap. The government’s stance was that while not perfect, it was a necessary step for immediate peace and stability. Many still claim that this was not even a solution, but mere an appeasement political action.
7. Cultural vs. Religious: There was considerable debate on how to separate cultural heritage from religious practice, especially in Bharat where these often intertwine. The government clarified that these exemptions were designed to respect both the cultural heritage and legal proceedings that had already reached a conclusion.
8. Legal Continuity: The discussions underscored the importance of not disrupting the judicial process for cases that were already in motion, highlighting the balance between new legislation and ongoing legal rights. The law completely put a bar on all ongoing legal proceedings which were numbered around 3000 across the country.
9. Scope of Exceptions: Some members questioned whether these exceptions would be broad enough to cover all relevant scenarios, or if they might leave loopholes for future disputes. The government assured that these exceptions were crafted to be comprehensive yet specific. The Act is silent on the conversions of religious places after independence, the process is still going on.
10. Constitutional and Legal Harmony: Debates here focused on how the Act could coexist with the Constitution’s guarantee of freedom of religion and other legal rights. The government emphasized that the Act’s intent was not to infringe on these rights but to prevent disputes that could lead to communal tension, thereby indirectly supporting secularism. But from point of view of many scholars, the Act failed to prevent the disputes. On the basis of mis-interpretation of the statute, still many communal incidences are happening in country, special in the form of stone-pelting.
11. Clarity and Interpretation: Some members sought more clarity on how courts would interpret the Act in relation to other laws, particularly in complex cases where rights or historical claims might be at stake. The assurance was given that courts would interpret the law in a manner that respects both the Act’s intent and existing legal norms.
12. Practical Implementation: There were concerns about the practicalities of applying this Act to ongoing cases, including how it would affect the judiciary’s workload and the potential for legal challenges based on the Act’s overriding nature. But Act completely disposed the ongoing litigations pending in the Courts, except that of the Ayodhya.
13. Legal and Constitutional Scrutiny: Members debated the constitutional validity of such penal provisions, questioning whether they align with the right to freedom of religion and expression. The government clarified that these penalties were aimed at protecting the secular fabric of the nation by preventing actions that could incite communal discord.
14. Implementation and Enforcement: Concerns were raised about how these penalties would be enforced, especially in a country with diverse religious practices where what might be seen as a conversion by one group might be cultural preservation by another. The government assured that discretion and understanding of local contexts would be exercised.
15. Role of Government: The stipulation that only the government could file complaints was further debated for potentially limiting individual agency in legal matters. However, it was argued that this was to maintain control over potentially sensitive communal issues, ensuring that actions were taken with a broader national interest in mind.
16. Accountability and Transparency: There was significant discussion on how this provision ensures accountability. By requiring rules to be laid before Parliament, members argued that it promotes transparency and gives Parliament the opportunity to debate, modify, or reject rules if they do not align with the Act’s spirit or broader public interest.
17. Potential for Delays: A concern was raised about the time taken for the parliamentary process to review these rules, potentially delaying the implementation or clarification of the Act. However, this was countered with the view that such a process is crucial for democratic governance and legislative oversight.
18. Scope of Rules: Discussions also circled around what kind of rules might be necessary, such as procedural guidelines for handling complaints or defining terms more clearly. There was a consensus on the need for rules to be narrowly tailored to the Act’s specific provisions.
19. Legislative Continuity: The savings clause was debated for its role in maintaining legislative continuity, ensuring that the intent and actions of the ordinance were not lost. This was particularly important in a country where communal sensitivities could be exacerbated by legal vacuums or sudden changes in law.
20. Interpretation and Application: Members debated how courts might interpret this section in ongoing or new disputes, emphasizing the need for a smooth transition from ordinance to Act to avoid legal complications or confusion.
21. Policy Implications: There was also discussion on how this section reflects a policy of using temporary measures (ordinances) for urgent situations but ensuring their eventual conversion into Acts for enduring legal solutions.
After criticizing and discussing all the points, between the chaos, in Rajya Sabha, the Bill was passed by majority on September 12, 1991. Same was presented before the President for the assent on it was signed on September 18, 1991. As the Ordinance was having date as July 11, 1991, Sections 1, 2, 4, 5, and 7 were came into force on the same day and the actions taken under the Ordinance were deemed as they had taken under the Act. Remaining Sections 3, 6 and 8 were related to penal actions, which can not be having retrospective effect, hence they came into force on September 18, 1991.
Reference:
[1] Rajya Sabha Debate on the Places of Worship (Special Provisions) Bill, 1991 Dt. September 12, 1991.
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