Babri to Gyanvapi: Courts undermine rule of law in mosque conversion cases, says study

A new legal research paper argues that Indian courts have become a central arena for what its author calls the "Hindu majoritarian project" to convert historic Muslim places of worship into temples, through a pattern of civil litigation that departs from established legal principles.

The paper, titled "Ethnicizing Law: The Hindu Majoritarian Project to Convert Muslim Places of Worship in India," is authored by Mohammed Afeef, an advocate practicing in courts and tribunals in Delhi and before the Supreme Court. It examines three major disputes in detail: the Babri Masjid-Ramjanmabhoomi case in Ayodhya, the Gyanvapi mosque-Kashi Vishwanath temple case in Varanasi, and the Shahi Idgah mosque-Krishna Janmabhoomi case in Mathura.

Afeef traces the origins of the movement to a 1949 resolution by the Hindu Mahasabha calling for the restoration of three temples in Uttar Pradesh, allegedly converted into mosques during Mughal rule. He notes that what began as a campaign targeting three sites has since expanded into calls by Hindutva ideologues to reclaim thousands of places of worship, including churches, across the country.

The paper's central argument is built around what it calls a "thin conception" of the rule of law, drawing on legal theorist Randall Peerenboom's framework, which emphasizes procedural neutrality, consistency, and equal application of law regardless of the outcome. Afeef contends that in each of the three cases, courts affirmed these principles in the abstract while departing from them in practice, on questions including limitation law, adverse possession, standards of proof, and recognition of legal standing.

In the Babri case, decided by the Supreme Court in 2019, the paper highlights what it describes as inconsistencies in how the court treated the law of limitation. A suit filed on behalf of the deity Ram Lalla in 1989, decades after the relevant events, was held to be within the time limit through reasoning Afeef calls unprecedented, while a separate group's competing claim was ruled time-barred. He also points to the court's decision to treat the disputed site as a single composite area rather than the divided inner and outer courtyards recognized since the colonial period, a finding he says rested on Hindu religious belief rather than established property law standards, and to what he describes as a stricter possession standard applied to the Muslim party compared to Hindu litigants.

On the Gyanvapi and Shahi Idgah disputes, the paper focuses on how the Allahabad High Court interpreted the Places of Worship (Special Provisions) Act, 1991, a law enacted to freeze the religious character of places of worship as they stood on August 15, 1947, with the Babri site alone excluded. Afeef writes that the High Court, in both cases, reasoned that because the Act does not define "religious character," courts could still inquire into a site's historical origins through trial and survey, even while barred from ordering an actual conversion. He argues this interpretation is not supported by standard methods of statutory interpretation and effectively defeats the law's purpose, since parties invoking Hindu legal doctrine argue that a site remains a temple in character regardless of subsequent use as a mosque.

The paper also notes procedural developments in both disputes, including court-ordered surveys by the Archaeological Survey of India, the 2022 report describing a structure found during a Gyanvapi survey, and the Supreme Court's December 2024 interim order pausing further suits, surveys, and proceedings connected to disputed religious sites nationwide while it considers a constitutional challenge to the 1991 Act.

Afeef concludes that similar suits have since been filed concerning other Islamic-era monuments, including the Qutub Minar complex in Delhi, the Taj Mahal, and the Bhojshala-Kamal Maula site in Madhya Pradesh, which he cites as evidence of a broader pattern rather than isolated disputes. The paper argues that the cumulative effect of these cases is to introduce what it terms an ethnic bias into ostensibly secular civil procedure, with consequences for the legal standing of India's Muslim minority.

The paper was prepared with input from Dr. Kanika Sharma, Bhavinee Singh, Alind Chopra, Dr. Akanksha Mehta and Arvind Narrain, according to its acknowledgements. Afeef has declared no competing interests.