On September 9, the Supreme Court permitted all the applications, including the plea filed by Jamiat Ulama-i-Hind, to intervene in the hearing of the pleas on the validity of the Places of Worship (Special Provisions) Act, 1991.
A three-judge bench comprising Chief justice Uday Umesh Lalit, Justices S Ravindra Bhat and P S Narasimha also granted two weeks to the Centre to file its reply on pleas challenging the validity of certain provisions of the Places of Worship Act, 1991, which prohibit the filing of a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on 15 August, 1947.
The bench ordered that the matters be heard by a three-judge bench on October 11 and asked the parties to complete the pleadings by then.
Former BJP Delhi Spokesperson Ashwini Upadhyay, BJP Rajya Sabha Member Dr. Subramanian Swamy, and others filed writ petitions challenging the Places of Worship Act, 1991. Moreover, parties filed roughly 15 impleading petitions, some of which were in favor of the law and others of which were against it. The petition by Ashwini Upadhyay alleged that the 1991 law creates an “arbitrary and irrational retrospective cut-off date” of 15 August, 1947, for maintaining the character of the places of worship or pilgrimage against encroachment done by “fundamentalist-barbaric invaders and law-breakers”. He also contended that the 1991 Act took away the rights of Hindus, Jain, Buddhists, Sikhs to restore their places of worship destroyed by “barbaric invaders”. The Supreme Court, on 12 March, 2021, had sought the Centre’s response to a PIL filed by BJP leader and advocate Ashwini Upadhyay challenging the constitutional validity of the PoW Act.
The Royal Family of Kashi, Jamiat Ulema-i-Hind, and other parties who submitted impleadment and intervention applications were also permitted to present their arguments at the case’s hearing. On September 8, the erstwhile royal family of Kashi filed the application claiming that the Act is a “textbook example of a legislation that was passed in the most undemocratic of manners possible,” disregarding the fundamental rights of those who are harmed, especially the right of formerly colonised indigenous communities to seek the reclamation of occupied religious and cultural sites.
LiveLaw quoted an excerpt of the IA: “The haste with which the Act was passed by the then dispensation without sufficient notice to members of the Parliament, in particular, the then Opposition, evidences the premeditated intent to not subject the contents of the Act and its implications to a democratic and informed debate. Quite apart from the problems associated with the process itself, it is humbly submitted that the direct consequence of the process as well as the end result is the unconstitutional truncation of the rights of affected indigenous communities to knock the doors of Courts of this country to seek enforcement of their fundamental rights and restoration of occupied sites to the original owners/stakeholders/guardians.”
Dr. Subramanian Swamy, the leader of the Bharatiya Janata Party, attempted to argue that the PoW Act should be read down in order to exempt the Kashi Vishwanath and Mathura Temple from its provisions. It is noteworthy that both temples are currently in the middle of litigations w.r.t mosques being built alongside them. However, senior advocate Rakesh Dwivedi representing the petitioner Ashwini Upadhyay argued that the issue of reading down wouldn’t come up until the court considered whether the Act was constitutional.
The debate over the PoW Act that a five-judge panel had in the Ayodhya ruling was brought up by advocates Ejaz Maqbool and M.R. Shamshad. The petitioners argued, however, that those remarks are obiter and not part of the ruling.
The Varanasi Court has deferred decision on the maintainability of the action pertaining to the Gyanvapi mosque, advocate Vishnu Shankar Jain, who is appearing in one petition, informed the bench. He continued by saying that he is contesting the statute on the grounds that the right to judicial review cannot be restricted and that he is relying on the ruling in the Minerva Mills case. For the Kashi Royal family, advocate J. Sai Deepak argued that one site of worship (Ayodhya) cannot have more rights than another place of devotion. As a result, the PoW Act is unconstitutional under Articles 14 and 26.
It was also highlighted in the said plea that despite both being regarded as Lord Vishnu incarnations and receiving equal reverence, the Act omitted Lord Rama’s birthplace while included Lord Krishna’s. Therefore, the act was arbitrary and unreasonable, the plea contended.
When the bench questioned Solicitor General of India Tushar Mehta on whether the Centre had submitted a response, the SG responded in the negative. As per LiveLaw, CJI Lalit stated that “We will issue notice in all these IAs. Today we are in combination of three but it should be with two judges. It has been pointed out that there are certain paras in Ayodhya judgment where the attention of the court was invited to legislation. Other side disagrees. These are matters to be taken up. So we will make that observation. Whether it comes before us cannot be said. But it will come before three judges.”
According to LiveLaw, the CJI read out the order: “A bench of two judges of this court issued notice in the matter on 12th March 2021. Thereafter this petition has been coming up on few occasions. However Union of India has not put in any response. The Solicitor General, Tushar Mehta has been granted two weeks to file affidavit. Rejoinder to be filed a week thereafter, if any. There is a host of applications seeking impleadment. We allow all these applications and give liberty to concerned applicants to intervene. The intervenors are to file written submissions which shouldn’t exceed 5 pages. WP (C) 559/2020 raises similar issues. We therefore formally issue notice in that Writ Petition. Considering the issues involved in the matter, in our view the matter is suitable to be heard by 3 judges. Copies of all intervention applications may be digitally shared with all counsels. The registry is directed to list the matter before appropriate bench on 11th Oct 2022. In the meantime, all parties are directed to complete pleadings in the matter so that matter can be considered on the next date.” The CJI also orally remarked that– “These are preliminary dates. Nothing will happen on these dates…”
Places of Worship (Special Provisions) Act, 1991 was enacted to prohibit conversion of any place of worship belonging to one religion or any section or denomination thereof into that of another religion, with Indian Independence Day i.e August 15, 1947 serving as the cut-off date. This was done in the wake of Ramjanmabhoomi and Babri Masjid issue for which Section 5 of the Act provides an exception i.e. the Act does not apply to the places of worship in the Ram Janmabhoomi and Babri Masjid issue.
In particular, Ashwini Upadhyay’s plea challenges Sections 2, 3, and 4 of the Act, arguing that they deny Hindus, Jains, Buddhists, and Sikhs the ability to legally regain their places of worship. Additionally, it claims that the restrictions are against the fundamental tenet of secularism and are against the State’s obligations under Articles 49 and 51A of the Indian Constitution to safeguard religious cultural heritage and protect historic sites. Further, the provisions are said to offend Article 14 (right to equality), Article 15 (right against discrimination), Article 21(right to life & personal liberty), Article 25 (right to pray practice prorogate religion), Article 26 (right to manage maintain administer places of worship-pilgrimage) and Article 29 (right to conserve culture) of the Indian Constitution.
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