Archaeological surveys of places of worship have been contentious and will likely remain so. We analyse decisions of Indian courts addressing this issue in context of the Places of Worship Act, 1991 (Places of Worship Act). Note: This article does not address the constitutionality of the Places of Worship Act and progresses on the basis, as is fact, that the Places of Worship Act is valid and subsisting as of date (July 2025).
The Places of Worship Act, 1991 (Places of Worship Act) was promulgated to maintain communal harmony. Simplistically, the Places of Worship Act mandates status quo of places of worship as existing on 15 August 1947. The parliamentary debates prior to the Places of Worship Act being promulgated are interesting and warrant review since the issues raised then continue to be raised today, both, in favour of and against, the Places of Worship Act .
As the statute stands, Sections 3 and 4 of the Places of Worship Act are of express relevance:
“[Section] 3. Bar of conversion of places of worship.— No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.
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[Section] 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.
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(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,—
(a) any place of worship referred to in the 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” (Emphasis supplied)
Section 5 of the Places of Worship Act stipulates the punishment for breach of the Places of Worship Act and is clear that an attempt to commit breach, any abetment of breach, and participation in a criminal conspiracy to commit breach, are also punishable in terms of the Places of Worship Act.
A ‘place of worship’ is widely defined as is ‘conversion’. These definitions are helpful and, in our opinion, underline that these defined terms must be understood in context of their respective practical application and meaning in our society.
The Places of Worship Act is succinct and clearly proscribes ‘conversion’ of any place of worship. Conversion, as defined in the Places of Worship Act and as commonly understood, involves alteration or change from 1 condition to another. It is trite but must be reiterated in context: ‘Conversion’ requires that the subject of the conversion undergoes a change.
Clearly, and ex facie, the act of conducting an archaeological survey does not constitute such conversion. This is further evidenced by the fact that Section 4(3)(a) (excerpted above) precludes application of the Places of Worship Act to places which are subject of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Archaeological Sites Act).
For clarity, we apply ‘archaeological survey’ as an exercise conducted by the Archaeological Survey of India (ASI) in accordance with its established standards and norms.
Determining religious character
An argument which has been made is that conducting such survey is a change, or will be the 1st step to changing, the ‘religious character’ of the place of worship which is the subject of such survey. To address this, we 1st consider the constituents, or, at least, description, of ‘religious character’.
While the Places of Worship Act is silent as to what constitutes ‘religious character’, courts have held that religious character needs to be determined based on the facts of each case and “…cannot be confined in limits of verbal terminology…”. The facts and circumstances attendant on a place of worship will determine the respective religious character. Courts have considered these matters while determining the (religious) character of a place of worship:
- Surveys, studies and examinations conducted by the ASI;
- History, religion and the law;
- Engravings on the walls including inter alia mantras and images of gods;
- Presence of hawan kunds;
- Presence of idols;
- Evidence of religious practices being undertaken on the premises.
The broad understanding of the character of a site, and, consequently, of a place of worship, is also addressed by inter alia the Operational Guidelines for the Implementation of the World Heritage Convention issued by UNESCO on 31 July 2024, which has suggested that as the site’s characteristics heritage and cultural meaning be considered not in isolation but as “accumulated over time”.
We note also that courts have separately emphasised the importance of the surveys, studies and examinations undertaken by the ASI. They have upheld the statutory duty of the ASI to excavate to ascertain the nature, character and original form of the place of worship and, in some instances, have directed the ASI to submit details of the exact procedures they propose to undertake for the excavation and confirm that the structure of the place of worship will not be damaged as a consequence of such procedures.
Scientific investigations are not done superficially and archaeologists go to the root to assess structure, material, make-up, visual appearances and composition to determine the character. By undertaking elaborate scientific investigations involving the multidisciplinary approaches of archaeology, the ASI can present reliable evidence to guide the Court. It is recognised that if scientific investigation facilitates ascertaining the truth, the investigation must be ordered in the interest of justice.
Considering this, in our opinion an archaeological survey undertaken by the ASI cannot and does not so change the religious character of a place. The history and practice of a religion or deity must be necessarily disjunct from the history of any place at which that religion is practiced. Reviewing and understanding history cannot change the religious character of a place of worship. Even if a place of worship is acquired under a land acquisition act only to be broken down and used to broaden a road, it would not amount to conversion, and, consequently, would not change its character.
We note also that if a place of worship is an archaeological site as defined in the Archaeological Sites Act, such archaeological site “…shall not be used for any purpose inconsistent with its character…”. The legislative position is consistent across statutes.
It is consequently also our opinion that an archaeological survey cannot be an offence against the Places of Worship Act, nor an attempt to commit, abetment of, nor a conspiracy to commit, such breach.
Conclusion
Our analysis of the Places of Worship Act must not be construed as our ignoring the social and societal realities in which we live. We are not ignorant of the fact that these issues have been and remain emotive and are the subject of formal and informal politics in our country. The continued debates and tension around inter alia the Gyanvapi mosque as well as the debates concerning the Places of Worship (Special Provisions) Repeal Bill, 2022 (which was opposed).
Nor do we suggest that the results of an archeological survey will not be used to raise demands for conversion of a place of worship which will in turn, likely, add to societal unrest.
Nonetheless, in our opinion the text and intention of the Places of Worship Act are clear: An archaeological survey of a place of worship is manifestly not proscribed by the Places of Worship and the Places of Worship Act ex facie proscribes any conversion of a place of worship. Imputing any other interpretation to the Places of Worship Act is more than the Places of Worship Act can bear and is also, in our opinion, incorrect.
This is of course based on the law as it stands. It is beyond the scope of this article to address inter alia the nature of our legislative process, our polity, and the manner in which our society engages with these processes other than to say that we are aware of these. We hope that all things considered we do, as a country-society-people, wake to the ‘heaven of freedom’ which Tagore conceptualised and which we, at least, aspire to.
