Close to a year (22 months) after the Supreme Court issued notice to it in the matter, the Centre on Monday (January 9) sought even more time to present its stand on petitions challenging the Constitutional validity of the 1991 Places of Worship Act. The Centre states that it is “consulting” on the issue and “the process” is on. The court gave the Centre time “till February end”.
When queried by Chief Justice of India D Y Chandrachud whether the Centre had filed the counter-affidavit explaining its position, Solicitor General Tushar Mehta said, “Kindly fix it for hearing. We are consulting. The process is going. We may file it before that.”
After a brief hearing, the bench, which also included Justice P S Narasimha, told the Solicitor General, “File your counter. We will give you time till February end.” The bench added that it will take up the petitions after that.
The 1991 Places of Worship Act, was enacted when the Babri Masjid still stood and sought to stem future divisive uprisals: the Act mandates that the nature of all places of worship, barring the one at Ayodhya, be maintained as it was on August 15, 1947.
Over two years back, in June 2020, a Lucknow-based trust, Vishwa Bhadra Pujari Purohit Maha sangh, and lawyer Ashwini Upadhyay (a BJP member) had moved the Supreme Court challenging the Act. Later, the Jamiat Ulema-I-Hind, too, approached the court seeking permission to intervene in the matter.
Act basic feature, SC said: 2019
In its famed Ayodhya judgment of November 2019, the Supreme Court had, while granting land for the construction of the temple, hailed the Places of Worship Act, 1991. It described the law as “a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution”.
On Monday, appearing for some of the intervenors, Senior Advocate Kapil Sibal said there cannot be a PIL challenging a view taken by the court. His reference, apparently, was to the Supreme Court lauding the Act in the Ayodhya title suit judgment.
Respondents have relied on what the Supreme Court had said about the Act in the Ayodhya case to claim that the judgment already recognised the purposes of the legislation. On the other hand, petitioners, have contended that the Act was not in challenge in the Ayodhya dispute and that whatever was said by the court regarding the legislation would only constitute obiter dicta (opinion of the judge and hence not legally binding).
During a previous hearing in October 2022, while responding to a specific query from the court, Mehta — representing the present political dispensation — too, had opined that what was said in the Ayodhya case “may not” cover the validity of the Act. “May not be covered. That (what was said in the Ayodhya case) was in a different context,” the Solicitor General had said.
On Monday, January 8, the bench said it will consider Sibal’s preliminary objections to the maintainability of the pleas when it takes them up for hearing.
It was on March 12, 2021, that the Supreme Court first issued notice in the matter and sought the Centre’s views. On September 9, 2022, the court gave the Government two weeks to file its response. This was then further extended at the Centre’s request and on November 14, 2022, when the SG submitted that a “comprehensive affidavit will be filed by the Union government dealing with various facets of the case… after due deliberation”. This comprehensive document is still awaited.
The petitioners have challenged the Act, contending that it bars the power of remedy of judicial review, which is a basic feature of the Constitution and therefore outside the legislative competence of Parliament. The Act, they say, also violates the principle of secularism.
Referring to the 2019 Ayodhya judgment, the petitioners said that “in case the Ayodhya case would not have been decided, the Hindu devotees would have been denied justice. Therefore any restriction on the right to approach the Civil or High Court is against the basic principle of rule of law, which is a necessary component of a welfare State”.
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