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SC to review law barring suits to reclaim holy sites
New Delhi: The Supreme Court on Friday agreed to examine the validity of a 30-year-old law that prohibited lawsuits to reclaim any place of worship after India was declared independent -- a move that could open the way for a clutch of lawsuits in several parts of the country
New Delhi: The Supreme Court on Friday agreed to examine the validity of a 30-year-old law that prohibited lawsuits to reclaim any place of worship after India was declared independent -- a move that could open the way for a clutch of lawsuits in several parts of the country.
The Places of Worship (Special Provisions) Act 1991 fixed the “character” of all places of worship prevailing as on August 15, 1947, except the Ramjanmabhoomi at Ayodhya.
A bench of Chief Justice of India (CJI) SA Bobde and justice AS Bopanna sought the response of three Union ministries, home, law and justice, and culture, on a plea filed by Bharatiya Janata Party (BJP) leader and lawyer Ashwini Kumar Upadhyay.
The petition challenged the provisions of the 1991 Act on the ground that it barred Hindus, Sikhs, Jains and Buddhists from restoring their places of worship and pilgrimage and placed an arbitrary cut-off date by which the “illegal barbarian acts of invaders” were allowed to continue in perpetuity.
“It is necessary to state that members of other faiths have occupied those places taking advantage of the pitiable condition of Hindus during Mughal and British Rule,” the petition stated.
The move comes amid court cases regarding the status of Krishna Janmasthan (regarded by some as the birthplace of Hindu God Krishna) in Mathura (where the Shahi Idgah mosque stands), and the Kashi Vishwanath Temple - Gyanvapi mosque case.
Ayodhya, Mathura and Kashi were often mentioned in the same breath at the peak of the Ram Janmabhoomi - Babri Masjid case. It was against this background that the then Congress government headed by PV Narasimha Rao in 1991 passed the Places of Worship Act, freezing the status of places of worship at the time of Independence (August 15, 1947). Ayodhya was excluded because of an ongoing litigation regarding the status of the disputed site. The BJP criticised the law at the time of its passing.
In November 2019, the Supreme Court delivered the final word in the Ayodhya case, ruling in favour of Hindu parties, paving the way for the construction of a Ram temple, work on which has begun. The Muslim parties were allocated a five-acre site in Ayodhya to build a mosque.
Interestingly, that judgement referred to the law being challenged and said it “imposes a non-derogable obligation towards enforcing our commitment to secularism”.
Section 4(1) of the 1991 Act said: “The religious character of a place of worship existing on the 15th of August 1947 shall continue to be the same as it existed on that day.” The same provision further stated, “if any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship existing on the 15th day of August 1947 is pending before any court, tribunal or other authority, the same shall abate and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.” The law came into force from July 11, 1991.
Upadhyay’s petition challenged Section 4(1) as unconstitutional on the grounds that it violated Article 25 (right to practice and propagate religion), Article 26 (right to manage religious affairs), besides being discriminatory to religious communities by barring them from approaching courts to restore their places of worship. Even the Centre’s power to enact such a legislation was called in question.
“In the garb of secularism, injustice cannot be done with places of worship and pilgrimage. Religious and cultural heritage plays vital role in laying the future foundation. Therefore, we cannot say goodbye to our cultural legacy. It will be the height of injustice if the rights of Hindus, Jains, Sikhs, Buddhists are junked,” added the petition.
In June 2020, a Hindu trust, Vishwa Bhadra Pujari Purohit Mahasangh, and other people , moved a petition in the Supreme Court challenging Section 4(1) of the 1991 Act. This petition was opposed by Jamait Ulama-i-Hind which filed an application to be heard in that case. Although the matter came up for hearing once, no order was passed as the same was adjourned.
The present petition made reference to the pending claims of Hindu groups to restore the birthplace of Lord Krishna in Mathura. “While enacting the Act, Centre excluded the birthplace of Lord Ram at Ayodhya but not the birthplace of Lord Krishna in Mathura, though both are the incarnations of Lord Vishnu, the creator,” the plea said.
Upadhyay’s petition also pointed out that a retrospective cut-off fixed by the legislature was even historically wrong as foreign rule in India began in the 11th century and continued till India gained independence in August 1947. According to the petition , the cutoff date ought to have been the date when India was conquered by Muslim invader Mohammd Gori in the 11th century.
