The Supreme Court is all set to hear a crucial batch of petitions challenging the Places of Worship (Special Provisions) Act, 1991, on December 12. This Act maintains the status of religious sites as they stood on India’s Independence Day and bars legal attempts to alter it. A special bench led by Chief Justice of India Sanjiv Khanna and comprising Justices Sanjay Kumar and KV Viswanathan will hear the case. It comes amid rising disputes over the ‘true nature’ of prominent religious sites like the Gyanvapi mosque in Varanasi and the Shahi Idgah mosque in Mathura. The petitioners argue the Act infringes fundamental rights under Articles 14 (Right to equality) and 25 (Freedom of religion) of the Constitution. The court’s decision is pivotal and will shape the course for multiple similar challenges pertaining to the places of worship.
What does the Act say?
The Places of Worship (Special Provisions) Act, 1991 was brought in by the Congress government under Prime Minister PV Narasumha in the midst of the Ram Temple movement. The Bill, tabled by SB Chavan in the Lok Sabha in August 1991,was passed on September 10, 1991. It received Rajya Sabha assent two days later.
The Act, having seven sections, prohibits “conversion of any place of worship” and provides “for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947.”
While sections 1 and 2 pertain to the title and definitions in the Act, Section 3 bars the conversion of places of worship by preserving their religious character. Section 4 deals with declarations of religious character of places of worship and the bar of jurisdiction of courts. Section 4(1) declares that the religious character of a place of worship as on August 15, 1947, will be preserved. Section 4(2) states that any ongoing legal case or appeal about changing the religious character of a place of worship as it existed on this date was automatically abated; and no new proceedings will now be entertained. If a case or appeal is filed in this regard or it was ongoing when this Act came into effect, it will continue and be resolved according to the rules laid out in the Act.
There are five exceptions when it comes to section 4:
➨ Places of worship that are classified as ancient or historical monuments, or archaeological sites protected under the Ancient Monuments and Archaeological Sites and Remains Act;
➨ Any legal case, appeal, or proceeding related to matters mentioned in section 4(2) that was already decided, resolved, or settled by a court, tribunal, or other authority before this Act came into effect;
➨ Disputes in which the parties involved settled the matter among themselves before the Act came into effect;
➨ If the religious character of a place of worship was changed by acquiescence; and
➨ If the conversion of a place of worship occurred before the Act’s commencement and cannot be legally challenged due to expiration of the time limit under existing laws.
Section 5 states that this act does not apply to Ram Janma Bhumi-Babri Masjid. “Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.”
What is the batch of petitions before the court?
The first petition, which is also the lead one – Ashwini Kumar Upadhyay v. Union of India, was filed in 2020. Later, similar petitions were filed including by Vishwa Bhadra Pujari Purohit Mahasangh and former Rajya Sabha MP Subhramanian Swamy. The main contention in these petitions are that sections 2, 3 and 4 are unconstitutional and that judicial review is fundamental to the Indian Constitution and cannot be barred by the Act.
Advocate Ashwini Kumar, the lead petitioner, argues that the Act is beyond the legislative power of the Union government, as it infringes upon fundamental rights and encroaches upon state subjects like pilgrimage. He also argues that the Act takes away the rights of Hindus, Jains, Buddhists, and Sikhs to restore their 'places of worship and pilgrimages', “destroyed by barbaric invaders”.
He also contends that the right to pray, profess, practice and propagate religion, guaranteed under Article 25; right to restore, manage, maintain and administer the 'places of worship and pilgrimage under Article 26; and right to restore and preserve the script and culture under Article 29 have been “deliberately and brazenly offended” by the Act.
The top court had issued notice to the Union Government in March 2021, but it has not filed its counter affidavit despite the court asking for it many times.
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