Can’t enforce places of worship Act within same religion: SC

Updated on Jul 30, 2022 03:09 AM IST

A bench of justices Dhananjaya Y Chandrachud and JB Pardiwala clarified that the objective of the 1991 Act is to accord protection to places of worship from being converted to a place of worship of a different religious denomination, or even a different segment of the same religion.

Can’t enforce places of worship Act within same religion:SC
Can’t enforce places of worship Act within same religion:SC

The 1991 Places of Worship Act cannot be brought into play in a battle between two sects of the same religion, the Supreme Court said on Friday, as it refused to entertain a petition by a sect of the Jain community alleging conversion of its religious places by another sect.

A bench of justices Dhananjaya Y Chandrachud and JB Pardiwala clarified that the objective of the 1991 Act is to accord protection to places of worship from being converted to a place of worship of a different religious denomination, or even a different segment of the same religion.

“But this is not a dispute between two religions...Your case is against a different denomination of the same religion. How can we entertain this as a writ petition under Article 32? This is not a case of conversion at all. You must file a suit and seek your remedies there,” the bench told senior advocate Arvind Datar, who was appearing for a group of persons belonging to one sect of the Jain community’s Shwetamber Murti Pujak Tapgachcha denomination.

According to the petition, both sects share common temples that have been at the centre of the dispute, with the majority group trying to enforce its beliefs on the smaller sect. The petitioners alleged the other sect was preventing them from entering temples to observe their religious practices, especially in relation to paying respects to their living monks.

The plea before the top court contended that the other sect has passed resolutions to prevent the devotees of the petitioner sect from following the religious practices, which it claimed, is a direct attack on the freedom of religion guaranteed by the Constitution of India under Article 25.

As soon as the proceeding began on Friday, justice Chandrachud wondered if a petition under Article 32 for enforcement of fundamental rights could be pursued in a dispute between two sects of the same religion.

“How can you file an Article 32 petition? You will have to file a civil suit. This is a dispute between two sects. You cannot seek this under the Places of Worship Act,” the bench told Datar.

The senior lawyer, on his part, sought to argue that the petition had to be filed for protection of their fundamental right to practice religion, which was contravened by another sect. “This group is being denied their fundamental right and this is happening across the country...The Places of Worship Act will be a dead letter if a petition under Article 32 is not entertained since there is no other remedy,” Datar added.

But the bench remained unconvinced. “This is a dispute between different denominations. We can’t be invoking Article 32 here. How do we enforce this? This court does not pass a decree like a civil judge. The 1991 Act was framed for a completely different purpose. Your dispute cannot be covered under the Act,” it remarked.

At this point, Datar informed the bench that there is a suit pending in Madhya Pradesh on this issue but the movement there is very slow.

“But that cannot be a reason for us to entertain a petition under Article 32. We will be extremely careful about entertaining this just because something isn’t moving there. The problem is that nobody wants to pursue the correct remedy in law. We want to convert every civil case into a criminal case, and every civil case into a writ jurisdiction,” retorted the bench.

It added that the matter would require evidence of the monks of the petitioner sect to show a civil court how the rituals were performed in the past and that there have been infractions of that right now. “You cannot just come here and we can decide it on the basis of affidavits,” the bench said.

At this point, Datar said that the petitioners have been writing to the police and home departments in various states to ensure they are not prevented from entering the temples.

To this, the bench responded: “We would suggest you to keep the government and police out of this. We don’t want police to be messing around in a dispute between two sects of the same religion. You file a representative suit and seek your remedies.”

In its final order, the bench recorded: “The dispute in the present case is essentially between the two sects of the same denomination. The resolution of the dispute cannot take place on the basis of affidavits. The nature of the rights claimed in the petition will have to be established on the basis of evidence, and so would the claims regarding infractions of rights. The mere reason that the Places of worship Act has been invoked will not be enough for entertaining the suit. Sufficient remedy is available under the Civil Procedure Code.”

The bench’s direction is in tandem with the view taken by another bench in the Supreme Court, also headed by justice Chandrachud, in the Gyanvapi mosque case. In May, the mosque management committee had sought to bank upon the 1991 Act to stall the proceedings before a civil court in Varanasi that had appointed a commission and also ordered for sealing of a section of the complex where a Shivling was purportedly found. The committee cited the Act which locks the position, or “religious identity” of any place of worship as it existed on August 15, 1947, to seek dismissal of the suit filed by five Hindu women in Varanasi.

The bench, however, refrained from examining the issue under the Places of Worship Act, and held that the proceedings before the civil court should go on. By its order in May, the top court shifted the trial of the suit from a civil judge to the Varanasi district judge with the direction that the question of the maintainability of the suit should be decided at first instance. It also ordered for continuing the protection to the sealed area.

On July 21, justice Chandrachud-led bench yet again declined to examine a spate of objections raised by the mosque management committee against the inquiry and sealing of a part of the premises for the time being, and added that it would rather wait for the final order of the Varanasi civil court. It fixed the next hearing in October.

There are also a clutch of petitions currently pending before the Supreme Court, questioning the validity of the Places of Worship Act on the ground that the retrospective cut-off date of August 15, 1947, can neither legitimise the wrongdoings of the past nor can any subsequent act alter the religious nature of a place where deities existed at any point of time. In December 2021, the Supreme Court had issued notices to the Central government and others on a petition filed by BJP leader and advocate Ashwini Upadhyay. However, there has been no movement in the case ever since.

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