The Supreme Court on Friday set the ball rolling on a series of petitions challenging the validity of the Places of Worship Act of 1991, a parliamentary law that protects the identity and character of religious places as on August 15, 1947.
A Bench led by Chief Justice of India U.U. Lalit said the petitions would be listed before an appropriate three-judge Bench of the apex court, which may consider the possibility of referring the challenge to the 1991 law to a Constitution Bench of five judges.
"Let the three judges consider and then only the Constitution Bench," Chief Justice said, posting the case on October 11.
Solicitor General Tushar Mehta, for the Centre, agreed to file a response in two weeks.
A slew of petitions has been filed against the Act, contending it has illegally fixed a retrospective cut-off date (August 15, 1947), illegally barring Hindus, Jains, Buddhists and Sikhs from approaching courts to "re-claim" their places of worship which were "invaded" and "encroached" upon by "fundamentalist barbaric invaders".
The main objective of these petitions is to set right a "historical wrong".
The court's readiness to test the law is significant considering the recent happenings in courts in Delhi, Varanasi, Mathura and the Supreme Court which test the protective grip and probe the boundaries of The Places of Worship (Special Provisions) Act of 1991.
In the hearing, advocate Vishnu Jain, for Vishwa Bhadra Pujari Purohit Mahasangh, said the judicial review of a law cannot be taken away.
Mr. Jain quoted the Minerva Mills judgment of the apex court which held that taking away the power of judicial review would "make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile".
"It would make Parliament the sole judge of the constitutional validity of what it has done and that would. In effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution," the Minerva Mills judgment said.
Advocate Ejaz Maqbool, for the Jamiat Ulama-i-Hind, countered that the Places of Worship Act is a central legislation and has already a "presumption of constitutionality" attached to it.
He referred to the Constitution Bench's observations in the unanimous Ramjanmabhoomi judgment which upheld the validity and necessity of the 1991 Act.
The Ayodhya judgment of the Supreme Court had said the 1991 Act “speaks to our history and to the future of the nation… In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future”.
Senior advocate Rakesh Dwivedi, for petitioner Ashwini Upadhyay, said the remarks in the Ayodhya judgment were in the nature of 'obiter dicta' and has force of law.
Advocate J. Saideepak Iyer, for the Kashi royal family, argued that one religious place, in Ayodhya, cannot be given precedence over others like in Kashi, and this was a violation of Article 26 (freedom to manage religious affairs) of the Constitution.
Dr. Subramanian Swamy, a petitioner, said his prayer was to read down the 1991 Act.
Mr. Dwivedi said the first step is to find out whether the Act was ultra vires or not. Reading down the Act comes only later if required.
In March 2021, the top court had issued formal notice to Union Ministries of Home, Law and Culture on the petition filed by Mr. Upadhyay against the various provisions of the 1991 Act.
Mr. Upadhyay had argued that the cut-off date was "arbitrary and irrational".
"The Act declared that character of places of worship-pilgrimage shall be maintained as it was on August 15, 1947 and no suit or proceeding shall lie in court in respect of disputes against encroachment done by fundamentalist barbaric invaders and law breakers and such proceeding shall stand abated," Mr. Upadhyay had said.
He had challenged Sections 2, 3, and 4 of the Act which dealt with the bar on legal claims that were against the principles of secularism.
"Section 2,3,4 not only offend right to pray, practice and propagate religion (Article 25), right to manage maintain administer places of worship-pilgrimage (Article 26), right to conserve culture (Article 29) but also contrary to State’s duty to protect historic places (Article 49) and preserve religious cultural heritage (Article 51A)," the petition said.
Other petitions too challenge the 1991 Act on similar if not identical grounds.
One of the new petitions accused the 1991 Act of “validating the illegal and barbarous action of invaders”.
Another petition filed by Anil Kabotra in the Supreme Court takes on an identical note by saying that mosques have to be constructed on “legally owned” and “virgin land”. “Temple’s religious character does not change after demolition of roof, walls, pillars, foundation and even offering namaaz," it said.
A petition by Devkinandan Thakur echoes the same notions of “historic wrong”.
