Although the Supreme Court's Constitution Bench had relied on the 1991 Act in order to permit the construction of a temple at the site where the Babri Masjid stood before its demolition in 1992, petitioners have sought to question the Act's exemption to the Ramjanmabhoomi-Babri Masjid complex from its purview.
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THE Supreme Court earlier today directed the listing of a batch of petitions challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 on October 11 for hearing. A bench comprising the Chief Justice of India ('CJI') Uday Umesh Lalit, and Justices S. Ravindra Bhat and P.S. Narishma, formally assigned the case to a three-judge bench.
The bench also granted two weeks' time to the Union Governemnt to file its reply to the petitions questioning the 1991 Act. It also allowed the impleadment and intervention applications filed by the Royal Family of Kashi, the Jamiat Ulema-i-Hind and others to make submissions during the hearing of the case.
Bharatiya Janata Party ('BJP') politician, economist and statistician Dr. Subramanian Swamy sought to submit that he has got an alternative prayer to make, that is, to read down the 1991 Act so that the Kashi Vishwanath and Mathura temples are taken out of the purview of the Act. However, senior advocate Rakesh Dwivedi, for the petitioner, Ashwini Upadhyay, submitted that the question of reading down would arise only when the court goes into the constitutional validity of the Act.
Advocates Ejaz Maqbool and M.R. Shamshad sought to invite the bench's attention to the discussion by a five-judge Constitution bench of the Supreme Court in the Ayodhya judgment of 2019 with regard to the 1991 Act. However, the petitioners contended that those observations are obiter and not the ratio of the judgment.
Advocate J. Sai Deepak, for the Kashi Royal family, contended that one place of worship (in Ayodhya) cannot have greater rights than another religious place. Hence, the 1991 Act violates Articles 14 (equality before law) and 26 (freedom to manage religious affairs) of the Constitution. Another advocate, Vishnu Shankar Jain, for the petitioner, argued that the Act takes away the power of judicial review, and hence is violative of the Constitution.
In March 2021, a bench comprising the then CJI S.A. Bobde and Justice A.S. Bopanna issued notice to the Union Government on a Public Interest Litigation filed by BJP leader and advocate Ashwini Upadhyay, challenging the constitutional validity of the 1991 Act.
In his plea, Upadhyay contended that the Act took away the rights of Hindus, Jains, Buddhists and Sikhs to restore their places of worship destroyed by "barbaric invaders".
The plea added that the Act excluded the birthplace of Lord Rama but included the birthplace of Lord Krishna, though both were considered the incarnation of Lord Vishnu and were equally worshipped among Hindus. The Act, the plea contended, was therefore, arbitrary and irrational.
It went on to state that Hindus, Jains, Buddhists and Sikhs had suffered from 1192 to 1947. "Question is as to whether even after the Independence, they cannot seek judicial remedy to undo the barbarian acts through process of court to establish that law is mightier than sword".
"The Act affects the right to religion of Hindus and snubs their voice against illegal, inhumane barbarian action committed in pre-independence period", the petition said.
The Places of Worship (Special Provisions) Act was enacted by the Parliament to prohibit the conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947, and for matters connected therewith or incidental thereto.
A five-judge Constitution bench of the Supreme Court, in its Ayodhya judgment, said that the 1991 Act protected and secured the fundamental values of the Constitution. The bench observed:
"The State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution".
The bench added, "In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered".
The Act, however, exempts from the application of its provisions the place of worship in the Ram Janma Bhumi-Babri Masjid site in Ayodhya, and to any suit, appeal or proceeding relating to it.