Places of Worship or Archeology?: Reviewing the laws that govern India’s mosques

Author: Sakshi Sharda
The Gyanvapi mosque, constructed in 1669, has a contested history. History stitches facts and invented narratives together, and the same is true for the Gyanvapi compound. Many have propagated many anecdotes about the construction, and the reason for the construction, of the mosque to be adjacent to the Kashi Vishwanath Temple in Varanasi, Uttar Pradesh. The claims range from the mosque being a construction with a temple to propagate Akbar’s religion Din-i ilahi to the mosque being built on what was historically the land of the temple, but not the temple itself. The most popular narrative is that the mosque stands on an older temple which was demolished during the reign of Aurangzeb. Historians have countered these claims however this stories have resulted in the current legal contestation. Anyone reading about the Gyanvapi mosque today, can draw direct links with Babri Masjid.  
ASI Survey Challenges the Places of Worship (Special Provisions) Act, 1991
At the height of the Babri Masjid tension, the then PV Narsimha Rao Government passed the Places of Worship (Special Provisions) Act, 1991 [PWA]. The provisions of the act was to preserve the religious character of any place of worship as it existed on 15 August 1947. However, the act was neither able to protect the mosque nor safeguard the religious character of the Babri Masjid since no laws can be retroactively employed during legal battles.
The hope was this act would ensure that in the future of Indian democracy no places of religious worship could be “reclaimed”. It was a safeguard that was put in place to ensure that the onslaught of any communal force on any religious site could be prevented. Despite policies with this foresight, the Gyanvapi mosque controversy continues to thrive. While the court has established multiple stays on the proceedings because of the PWA, 1991, the ongoing ASI survey on the property goes against PWA’s objectives. 
The ASI survey is intended to excavate the remnants of what is believed to be an older temple. The legal reasoning for the ASI survey being conducted is “to establish truth”. This conjectural truth finding mission goes against the provisions of PWA because the inherent objective is to challenge the present religious character of Gyanvapi mosque. Currently in all legal proceedings of the Gyanvapi mosque, the primary law under consideration remains the PWA, 1991. 
The results of the ongoing ASI Survey could lead to a change in the religious character of the Gyanvapi site to that of an ancient monument or archaeological site. It opens the gates for archaeological prerogative in a previously religious site, which then transforms the legal contestation. The PWA exempts all sites that fall under the purview of the Ancient Monuments and Archaeological Sites and Remains Act of 1958 [AMASR], or any other law, from its provisions. The series of ongoing events beg the question: Which laws govern the mosques in India? 
The Ancient Monuments and Archaeological Sites and Remains Act, 1958
AMASR Act of 1958 defines ‘ancient monuments’, ‘antiquity’, and ‘archaeological sites and remains’ as places which should have existed for at least a hundred years. A judgement by Himachal Pradesh High Court further claims that no special status of ancient monuments needs to be given to a building constructed over a 100 years ago, it is a de facto ancient monument.  Therefore, under this act, the Gyanvapi mosque falls within the definition of an ancient monument. 
One of the important provisions of the AMASR Act with regard to preservation and protection is the establishment of a ‘protected area’ (Section 20) around the ancient monuments and archaeological sites. This is a regulated area of two hundred metres in all directions around the sites, deemed to be of national importance and activities such as mining, quarrying, excavating, blasting or construction of any kind are prohibited within it, including activities undertaken for public purposes. The act was amended for the first time in 1992 whereby the prohibited area was defined as extending to a distance of one hundred metres in all directions. A further circumference of two hundred metres was categorised as a regulated area.
What is of recent concern within the policy framework is the current bill “The Ancient Monuments and Archaeological Sites and Remains Bill, 2017” slated to be discussed in this monsoon session of the Parliament. While the Parliament discussions of the bill did not mention the Gyanvapi mosque, the government insisted that the provisions of the AMASR Act were too rigid and the constraint on infrastructural construction within the prohibited areas was detrimental to both public good and developmental projects of the government. 
In 2018, the Lok Sabha passed the AMASR (Amendment) Bill revising the provisions of the ‘prohibited area’. The amendment allows construction activities in the prohibited area for ‘public work’. The bill defined ‘public work’ as any construction financed and executed through the government’s sanction for public safety and security. The infrastructure must be necessary and the only recourse available to do away with a particular instance of threat to public safety
The authority to decide the qualification and the necessity of the construction is vested with the National Monuments Authority. It would communicate its recommendations to the central government but the decision of the latter will be final. Furthermore, the recommendations by the NMA are not mandatory for the central government to take into account. Therefore, the ambiguities on how large the ambit of public safety and security becomes worrisome and leaves much grey area. 
The Ancient Monuments and Archaeological Sites and Remains (Amendment) Bill, 2017 was then referred to the scrutiny of a Select Committee in the Rajya Sabha. The Committee came out with its report in February 2019. The report recommended the delimitation of the prohibited area on a case-by-case basis rather than a rigid hundred metres blanket limit. The report further challenged the Bill’s definition of ‘public works’. The Bill only mentions construction relating to public safety and security and does not mention public utility projects like metro construction, roads and highways etc, which further dilutes the necessary protection to an archaeological site. 
AMASR Bill 2017’s Impact on Gyanvapi Mosque
The AMASR Bill 2017 if passed in the Rajya Sabha not only dilutes the protection for any archaeological site. It would create conditions where, even given the ongoing legal battle of the Gyanvapi mosque, the central government could begin construction within the compound for public safety. The Babri Masjid precedent would then resurface but this time it could be employed to interpret public safety to prevent possible communal violence given the ongoing legal battle for the Gyanvapi mosque. 
The current bill gives no clarification if the considerations between an ancient monument and a religious ancient monument would be different. Furthermore, the bill does not clarify if the constructions for public safety can change the character of the present archaeological site or ancient monument. Without due consideration and deliberation the current draft of the bill would de facto leave all authority with the central government and could result in a politically geared chain of events where archaeological sites and ancient monuments are subject to political whims.