A Delhi Court on Tuesday asked whether the right to worship is a statutory or constitutional right while hearing pleas surrounding the Qutub Minar controversy. The court further observed that it was important to ascertain the "character" of the Qutub Minar as it fixed June 9 for orders.
The Archaeological Survey of India pointed out that the Qutub Minar was a monument without worship and as such it should continue like that; however, the Hindu devotees argued that a temple pre-existed a mosque in the complex. The court observed that if such was a situation where it was fact versus fact, then could it be decided under Order 7 Rule 11 of the Code of Civil Procedure which dealt with the rejection of a complaint.
The Delhi court was hearing a challenge to a civil court's order dismissing a plea seeking restoration of Hindu and Jain temples inside the Qutub Minar complex.
The civil court in December 2021 had also observed that the wrongs of the past cannot be a basis for disturbing the peace in the present and if the same is allowed then the secular nature and fabric of the constitution would be damaged.
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Is the right to worship a fundamental right?
The Delhi court asked whether one's right to worship was a fundamental right.
"The question is whether the right to worship is an established right. Whether it's a constitutional or any other right? The only question is whether there is any denial of any legal right to the appellant (Hindu deity/devotees)? And what all remedies if any are available with respect to this right?" Additional Sessions Judge Nikhil Chopra said.
The judge said even if one assumed that Hindu temples were demolished, and a structure (Qutub Minar) was raised; assuming it wasn't used by Muslims as mosque; the question that is more important is on what grounds can one now claim the rights for restoration?
"Now you want this monument to be turned into a temple calling it restoration, my question is how would you claim legal rights assuming it (temple) existed about 800 years back? On a lighter note, the deity (Lord Rishabh Dev) has survived for last 800 years without worship. Let him survive like that," the judge said.
The court's observations came after Advocate Hari Shankar Jain, representing Hindu and Jain devotees, argued that his right to worship survived even after 800 years if the deity survived.
The Archaeological Survey of India (ASI) however argued that the Qutub Minar was a protected monument, and no one had a right to worship there.
BOOM recaps the arguments made in court today.
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Right to worship if deity survives: Hindu Devotees
Advocate Hari Shankar Jain argued that if the admitted position of the last 800 years was that the mosque in the Qutub Minar complex was not being used by the Muslims and when there was a temple that was in existence much before the mosque, then why it couldn't it be restored?
Jain pointed out relevant sections in the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act) that provided for protection of places of worship from misuse, pollution, or desecration to buttress his argument. Jain also referred to the 2019 Supreme Court judgment in the Ayodhya matter to contend that a deity always remained a deity and that a temple would not lose its character sanctity or dignity merely because it was demolished.
"I am a worshipper. There are images still existing, still visible…If the deity survives, right to worship survives," Jain argued.
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No right to pray at a living monument: Archaeological Survey of India
The Archaeological Survey of India said the destruction of old temples to build the Qutub Minar complex is a historical fact, but since it is a protected monument no one has the right to worship there as it opposed the plea before a Delhi Court seeking the restoration of Hindu & Jain temples.
The 1991 Places of Worship Act was enacted to protect the religious character of religious places, while the intent of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act), was meant to protect, preserve, and maintain monuments.
Changing or altering the existing character of the Qutub Minar would be a clear violation of the act and thus the pleas should not be allowed.
According to the provisions of the AMASR Act, worship cannot take place at any living monument, and thus no decision can be taken that will alter the existing character of the structure.
"Character of a place is determined on the date when monument comes under the purview of 1958 Act. The character once frozen as that in the monument cannot be changed," advocate Subhash Gupta said.
Gupta, who was representing the ASI, further explained that when a monument falls in the jurisdiction of the ASI under the 1958 Act, there is a period of objections of 60 days. And that's how there are several monuments in the country which are places of worship while several other monuments are not.
"It is settled that fundamental rights are not absolute in nature," he added.
Also Read: Explained: The Places Of Worship Act And Pleas Around It