Faizan Mustafa, Vice Chancellor, Chanakya National Law University, Patna, during a seminar in Hyderabad on July 20, 2014. | Photo Credit: Nagara Gopal

Bhojshala ruling contradicts Babri judgment: Faizan Mustafa

The Vice Chancellor, Chanakya National Law University, Patna says the legal foundation of the Bhojshala judgment is weak because the Supreme Court in the Babri case categorically held that ownership disputes cannot be decided on the basis of archaeology.

The Madhya Pradesh High Court’s judgment in the Bhojshala-Kamal Maula Mosque case is contrary to the Supreme Court’s Babri Masjid verdict wherein the court had categorically said that ownership disputes cannot be decided on the basis of archaeology, said Faizan Mustafa, Vice Chancellor, Chanakya National Law University, Patna.

In an interview with Frontline, Mustafa said the Bhojshala ruling could have ramifications for other disputes because of the way it has interpreted the Places of Worship (Special Provisions) Act, 1991. He also said that lower courts, High Courts, and smaller benches of the Supreme Court have, in different cases, gone against the letter and spirit of the 1991 law. Excerpts:

The Madhya Pradesh High Court has stated that, on the basis of archaeological and historical facts, it is crystal clear that the building in question is a Hindu temple and a place of learning of Sanskrit language. Your views.

I am surprised that the court admitted a writ petition [under the name] Hindu Front for Justice v. Union of India. Such names can easily polarise our society. Legal disputes should not be converted into Hindu-Muslim disputes. There were already several parties seeking recognition of this site as temple.

In the Babri Masjid [dispute], too, though the Nirmohi Akhara was fighting the case for over a century, in 1989, Ram Lalla himself entered the litigation as a party, and this changed the nature of the dispute. It is really difficult for any judge to decide a case against his or her God. Recently, former Chief Justice of India D.Y. Chandrachud did admit that he sought his God’s help in deciding that case, although the Lord himself was a party.

Unlike the Babri suit, the judgment in this case has been delivered quickly. Through a writ case, a property dispute has been settled, which is unusual.

Common sense dictates that every place of learning is not necessarily a place of worship. There was no archaeological or historical evidence whatsoever found to prove even by the preponderance of evidence that the disputed mosque was constructed after demolishing a Saraswati temple. In the Babri Masjid case too, no evidence was found that a Ram temple was demolished to construct the Babri mosque. Thus, even in terms of archaeology, the findings of the court are unconvincing. Even the term “Bhojshala”, or the “hall of king Bhoj”, was given by a civil servant, K.K. Lele, in 1903. But more importantly, Lele did not mention Saraswati anywhere. Locals used to call it “Bhoj ka Madarsa”, which refers to a place of learning. Sanskrit inscriptions at the site, too, feature grammatical rules and poetry, indicating it was a learning place. No Sanskrit source has said that it was Bhojshala. “Shala” means a place.

C.E. Luard in his Gazetteer of 1908 mentioned the term Bhojshala but explicitly said it was a misnomer. John Malcolm in 1822 called it a ruined mosque. William Kincaid in his 1888 “Rambles, among Ruins in Central India” did not mention the term Bhojshala either. He merely referred to the “Akl ka Kua”, or the “well of wisdom”, in front of the tomb of Kamal al-Din. Moreover, the idol [of Saraswati] was not recovered from the Kamal Maula mosque site but from Rajwada or the city palace area.

C.B. Lele, in 1943, did write that the sculpture was found in the palace. The British Museum too mentions the fact that the idol was found in the palace. The controversial report of the Archaeological Survey of India (ASI), throughout its 10 volumes, refers to the site as Bhojshala temple. This one fact is enough to doubt the authenticity of the report. There are several legitimate questions about the whole process of the so-called scientific survey. Why carbon dating was not done in spite of the directive by the High Court remains a mystery, as it would have exactly determined the age of the artefacts. Why the ASI, which is not an independent body and works under the direct control of the [Union] Ministry of Culture, refused to provide inventory records, original recovery locations, and documentary evidence of some artefacts raises doubts in the minds of fiercely independent observers and scholars.

The legal foundation of the judgment is quite weak. In fact, it is contrary to the law laid down by the five-judge bench of the Supreme Court in the Babri Masjid judgment [2019], wherein the court categorically said that ownership disputes cannot be decided on the basis of archaeology. The Babri case was not decided on the basis of an ASI report.

How do you view the grounds on which the claims of the respondents were dismissed? According to the judgment, none of the materials provided by the respondents showed that the mosque was constructed before 1034 CE, while other materials in the court established that there was the construction of Bhojshala and the temple of goddess Vagdevi (Saraswati) in 1034 CE.

This is an interesting finding. Can anyone who constructed a building be ousted just because it is proved (through doubtful methods), after digging, that there was some other building beneath the surface, prior to the construction of that building? This is a new jurisprudence of ownership and possession. No one had argued that the mosque was older than the remains of the ruined structure.

In historical places, use of existing material in new construction is routinely seen. The burden of proof that had not been discharged by the petitioners was that the mosque was constructed after demolishing the Saraswati temple. In fact, though the High Court held that [the site] was a Saraswati temple, there are experts who believe that it [had] a statue of Ambica, [which] is housed in the British Museum in London, and was made by the Jain artist Vararuchi. The judgment is a much bigger setback to the Jain claim.

What are the implications of the Bhojshala judgment for the Places of Worship Act that was enacted as a safeguard against reopening historical disputes over the religious character of places of worship?

High Courts, as per the doctrine of precedent, are bound to follow the decisions of the Supreme Court. It is a new trend that this doctrine is not being followed. In May 2026 itself, in the Syed Iftikhar Andrabi case, Justice Bhuyan and Justice Nagarathna criticised the two-judge bench of two sitting judges of the Supreme Court that had denied bail to a few student activists in disregard of the law laid down by a larger three-judge bench in the K.A. Najeeb case (2021).

Similarly, the Supreme Court observed in the Babri Masjid judgment that the Places of Worship Act is a legislative intervention which preserves “non-retrogression” as an essential feature of our secular values. Unfortunately, our courts are trying to settle all historical wrongs. Such an approach would lead to more such disputes. Buddhists, too, are now staking claims to several Hindu temples. A modern, liberal, and progressive nation should not spend so much time on religions and religious disputes.

The court declared the site to be outside the ambit of the 1991 Act by citing its status as a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and also stated that the plea was not a title suit. What do such exceptions mean for the law? Do they suggest a need to relook at the law entirely?

The court’s observations raise a pertinent issue. The High Court is right in observing that the 1991 law has created an exception for ASI-protected monuments. Section 4 of the Act basically states [a] few other exceptions as well in terms of disputes already settled through negotiation or court judgment.

But in the Sambhal case, in spite of the court order and the High Court’s upholding of that order that [the site] is a mosque, a court entertained petitions [claiming the Hindu nature of the site]. In the Mathura case, there is a settlement; yet, the courts are not giving effect to that settlement.

The assumption is that once a monument is declared as protected, no controversy can be allowed about its ownership or possession, as the government has the responsibility of protecting it. The relevant law for a protected place of worship is the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

Section 16 [of the Act] lays down that a protected monument maintained by the Central government under this Act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character. Accordingly, if it is a mosque, no worship other than Muslim namaz is to be allowed there. People have been praying at Kamal Maula for some 700 years or so.

A solution was found under which Muslims would pray on Friday and Hindus on Tuesday. This was a reasonable solution to avoid religious conflict and maintain peace, which was the very object of the 1991 law. But the court used the 1991 exception clause to come out of the restriction and entertain this dispute.

With this interpretation, all mosques which are protected monuments would now go out of protection provided by the 1991 law. This was not the legislative intent when this law was enacted by Parliament to end religious disputes. So long as the Supreme Court does not hold the 1991 law as unconstitutional, all courts are bound by this law and must give effect to its provisions and laudable object.

No amendment in this law or even in the Constitution can solve such matters, as judges may strike down even a constitutional amendment by saying that it violates the basic structure of the Constitution.

The Supreme Court, in the Babri judgment, emphasised the significance of the Places of Worship Act. However, other historical disputes related to places of worship have been taken to court since then.

The apex court in Babri Masjid observed: “The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the state to preserve and protect the equality of faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.” As the said Act provides for maintaining the religious character of all places of worship as on August 15, 1947, the court observed that “there is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation…. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.” High courts and civil courts have no option but to follow the law laid down by the Supreme Court. Non-retrogression is the ratio of the Babri case.

How do you look at the manner in which courts have, in recent years, dealt with disputes pertaining to the religious character of historical sites and how they have interpreted the applicability of the Places of Worship Act?

Courts are ignoring the very purpose of the 1991 law and are going against the unanimous five-judge bench judgment in the Babri case. With the Bhojshala judgment, the 1991 law itself will now be used to hold that the dispute is not covered by the prohibitions of Section 3 [bar on conversion of a place of worship] and Section 4 of the 1991 Act. The courts have overlooked the crucial words in Section 4, which are “existing” and “existed”. It says, “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.” Section 4(2) further lays down that no suit, appeal, or other proceedings with respect to any such matter “shall lie on or after such commencement in any court, tribunal or other authority”. Thus, courts have to implement this declaratory law. Parliament as sovereign legislative body had “declared” to freeze the religious character of places of worship on August 15, 1947. Further, proviso to Section 4(2), [the Act] categorically provides that all pending cases are to be decided as per the 1991 law. Thus, lower courts and High Courts and smaller benches of the Supreme Court are going against the letter and spirit of the 1991 law and the Constitution Bench’s judgment in the Babri case.

The constitutional validity of the Places of Worship Act has itself been challenged in the Supreme Court. How do you view the growing debate around the law?

This is the vital question. There is some substance in the argument that the Babri judgment’s reference to the 1991 Act is not the ratio of that judgment, as it was not the issue before the court. But similarly, in the Ismail Faruqui case (1994), the question of whether the mosque is an essential feature of Islam was not before the court, and no arguments were made on this issue, yet the court held that the mosque is not an essential feature of Islam.

The Supreme Court’s observations on the 1991 law are vital as the court tried to resolve the contentious dispute with a kind of implicit assurance that while the Babri mosque is excepted from the ambit of the 1991 law, for other religious places, the 1991 law would govern the disputes. When the court says historical wrongs cannot be corrected, it is very much the ratio of the case.

If the Supreme Court strikes down the 1991 law, no protection of religious places would survive. Generally, as per parliamentary conventions, the government is supposed to defend every parliamentary law in the court. One has to see what stand the Union government would take about the 1991 law. If it decides to oppose the law, the court may accept the petitioners’ argument that this law, in the proviso of Section 4(2), excludes judicial review, and strike down the law. But such a judgment would lead to chaos, and the court would be making “retrogression” rather than “non-retrogression”.

The Supreme Court passed an order in December 2024 directing that no new suits shall be registered, and in pending suits, no effective or final orders, including orders for survey, shall be passed. But exceptions have been made and cases have proceeded, including on Bhojshala.

What the 1991 law aimed at was that no case on religious disputes is to be entertained after Babri. Unfortunately, Justice Chandrachud’s subsequent oral observations in the Kashi [Varanasi] case that the court can determine the religious character of the disputed site as on August 15, 1947, opened the floodgates of litigation with cases filed about Mathura, Sambhal, Ajmer, and so on. Chief Justice of India Sanjeev Khanna, in December 2024, put the brakes on this trend and stayed all such proceedings throughout the country. Justice Khanna’s short term as the CJI is remembered for this order. But in a PIL [petition] rather than a suit, on January 22, 2026, the Supreme Court permitted the unsealing of the ASI report and allowed the court to resume hearing in Bhojshala. The fact remains that the stay in [Justice Khanna’s order] was not vacated. Thus, we now have a strange situation where all suits as per Justice Khanna’s order remain stayed but PIL [petitions] can be used to overcome the hurdle of that stay.

With excessive religiosity devoid of spirituality on the rise, we are witnessing a rush hour of God in India. I hope the Muslim community demonstrates maturity and takes the lead in resolving contentious disputes through mediation. The litigation route is not a great idea. We must save our beloved country from hate and polarisation and try to have peace and social harmony. A policy of accommodation by both sides, and out-of-court settlement of disputes by the local people, without the involvement of clergy and political leaders, would be a much better solution.

Security personnel stand guard as people gather to offer prayers at the disputed Bhojshala complex in Dhar district, Madhya Pradesh, on May 22, 2026. | Photo Credit: PTI

The Indore Bench of the High Court said the Hindu character of the site was “crystal clear” on account of archaeological and historical facts. | Photo Credit: PTI