2.3.5 Section 4:
Bare Act Provisions:
4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc.—
(1) 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.
(2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority:
Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,—
(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act;
(c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement;
(d) any conversion of any such place effected before such commencement by acquiescence;
(e) any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal or other authority being barred by limitation under any law for the time being in force.
Interpretation and Explanation:
Sub-section (1): 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. This sub-section mandates that the religious identity, character, and denomination of any place of worship must remain unchanged from what it was on the date of Bharat’s independence. It serves as a legal safeguard to maintain the historical religious status quo, thereby aiming to prevent litigation or disputes over changes in religious identity post-independence.
The sub-section is the formal declaration under the law, which refers to the identity or nature of a place in terms of its association with a specific religion, including its use, design, or historical religious significance. This sets a historical cut-off date at Bharat’s independence, meaning only places of worship that existed on this date are covered by this Act. It mandates that the religious character of these places remains unchanged from what it was at independence, preserving their religious identity from that point forward. This sub-section was designed to freeze the religious status as of the date of independence of Bharat.
Sub-Section (2): The provision starts by referring to the date on which the Act comes into effect. Further it states that, any pending Suit or any pending Appeal or any other pending proceedings related to changes in the religious nature of a site used for worship will end or be dismissed. “Abate” here means to stop or terminate. All such sites must be exist on August 15, 1947. After the Act’s commencement, no new legal actions can be initiated concerning the conversion of religious character of places of worship that existed before the specified date.
According to the proviso, the Sub-section (2), if religious nature of place of worship is altered after August 15, 1947, and any kind of legal proceeding is pending at the time of commencement of the said Act, then such matters shall be decided in accordance with the Sub-Section (1).
This text seems to be from a law aimed at regulating or stopping litigation concerning the religious character of places of worship, particularly those disputes stemming from the time of India’s partition, while allowing for the resolution of post-independence disputes under specified conditions.
Sub-Section (3): It has five clauses which are describing the exceptions to this Act. The provisions of the Sub-Section (1) and (2) shall not apply in certain cases. The court emphasized that exemptions must be strictly construed, meaning they should be interpreted narrowly to prevent unnecessary withholding of information.[1] The exceptions should serve a specific purpose or protect certain interests.[2] Following are the exceptions
Clause (a): Archaeological sites and remains preserved under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. As per Qutub Minar Case, the Delhi High Court dismissed the petition seeking to offer prayers at Qutub Minar, noting that it would violate the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The court clarified that the monument’s character as an archaeological site under preservation law overrides its potential use as a place of worship.[3] Thus any site identified as archaeological site and remains shall not be considered as place of worship and shall be excluded from application of the Act.
Clause (b): It exempts the suits decided as per the provisions of Sub-section (2) of the Section 4. This clause is following the principle of res judicata, which the principle, enshrined in Section 11 of the Code of Civil Procedure, 1908, means “a matter already adjudged” and aims to prevent the same cause of action from being litigated more than once. The Supreme Court emphasized that for res judicata to apply, the matter in issue in the subsequent suit must be the same as in the former suit, directly and substantially in issue, and adjudicated upon by a competent court.[4]
The court extended the principle of res judicata to writ petitions under Article 226 of the Constitution, stating that if a matter has been decided by a competent court, it cannot be re-agitated in another court on the same grounds. It illustrates the broader application of finality in judicial decisions, which would be pertinent in understanding how prior suits or proceedings concluded before new legislation affect post-legislation disputes.[5] Once a matter has been finally decided, it cannot be reopened, emphasizing the principle of finality in judicial proceedings. The decisions made under the earlier law, if final, would not be disturbed by the new law unless there was a specific provision in the new law for reopening such cases.[6]
Clause (c): This clause puts an exemption on the disputes settled by the parties before the commencement of the Act. It involves understanding the legal principles of finality, consent, and the implications of private settlements in light of subsequent legislation. When parties settle a dispute amongst themselves, it typically results in an agreement that can be legally binding, often recorded in a consent decree or compromise.
The Supreme Court emphasized that once a compromise is reached between parties and recorded by the court, it becomes a judgment by consent, which has the same binding effect as any other decree of the court.[7] A valid settlement agreement, once recorded and acted upon, would generally not be disturbed by subsequent legislation unless the new law explicitly provides for the reopening of such settled matters.[8]
Clause (d): The concept of “conversion by acquiescence” typically refers to a situation where a place or property, initially designated for one use or ownership (like a place of worship), is changed in use or ownership through the passive consent or non-opposition of those with rights over it. This can be complex, especially in the context of religious or historical sites. Such sites are exempted from the application of this Act. Mere non-use does not equate to acquiescence unless there’s clear evidence of consent or abandonment.[9] For acquiescence to be established, there must be explicit or implicit consent by the party whose rights are at stake, not just inaction.[10]
Clause (e): This is fifth category of places of worship which has been exempted from the application of this Act. This category is barred by the limitations laws in force. Laws of limitation set a period within which legal actions must be brought to court. After this period, the right to sue is generally barred, aiming to provide finality to disputes and prevent stale claims. Once the limitation period expires, the rights under that law are extinguished, and no challenge can be made thereafter.[11] Long-term use without objection can lead to rights being established, especially if beyond the limitation period for initiating legal action.[12]
Laws of limitation (like the Limitation Act, 1963 in India) prescribe time limits for initiating legal proceedings. Once these limits are crossed, the right to challenge is often lost. While generally barred, there might be rare exceptions where courts could entertain a case beyond limitation if fraud, concealment, or other equitable reasons are demonstrated, but this would be the exception, not the rule.
References:
[1] Central Board of Secondary Education & Anr vs. Aditya Bandopadhyay & Ors [2011 (8) SCC 497]
[2] Girish Ramchandra Deshpande vs. Central Information Commission & Ors [2012 AIR SCW 5865]
[3] Tirthankara And Ors. vs Uoi famously known as Qutub Minar Case decided by Delhi District Court on November 29, 2021.
[4] Satyadhyan Ghosal & Ors. vs. Deorjin Debi & Anr. [1960 AIR 941]
[5] Daryao & Ors. vs. State of U.P. & Ors. [1961 AIR 1457]
[6] Bhagwan Das & Ors. vs. State of Uttar Pradesh & Ors. [AIR 2010 SUPREME COURT 1532]
[7] Sushil Kumar Sen vs. State of Bihar & Ors. [975 AIR 1185]
[8] Gurpreet Singh vs. Union of India [(2006) 8 SCC 457]
[9] R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple [AIR 2003 SC 4548]
[10] N. Adithyan vs. Travancore Devaswom Board & Ors (2016) [(2002) 8 SCC 106]
[11] State of Punjab vs. Gurdev Singh [1991 SCR (3) 663]
[12] State of Punjab vs. Gurdev Singh [1991 SCR (3) 663]
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