A three-judge special bench will hear petitions on December 12.
New Delhi:
The Supreme Court has notified a three-judge Special Bench to hear a clutch of petitions challenging the validity of certain provisions of the Places of Worship (Special Provisions) Act, 1991.
The Act prohibits filing of a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on August 15, 1947.
As per the cause list published on the website of the apex court, a Special Bench headed by CJI Sanjiv Khanna and comprising Justices Sanjay Kumar and KV Viswanathan will hear the matter on December 12.
In March, 2021, a Bench headed by then CJI S.A. Bobde had sought the Centre’s response on the plea filed by advocate Ashwini Upadhyay challenging the validity of certain provisions of the law.
The plea said, “The 1991 Act was enacted in the garb of ‘Public order’, which is a State subject (Schedule-7, List-II, Entry-1) and ‘places of pilgrimages within India’ is also State subject (Schedule-7, List-II, Entry-7). So, the Centre can’t enact the Law. Moreover, Article 13(2) prohibits the State to make a law to take away fundamental rights but the 1991 Act takes away the rights of Hindus, Jains, Buddhist, Sikhs, to restore their ‘places of worship and pilgrimages’, destroyed by barbaric invaders.”
It further added, “The Act excludes the birthplace of Lord Rama but includes the birthplace of Lord Krishna, though both are incarnations of Lord Vishnu, the creator and equally worshiped throughout the word, hence it is arbitrary.”
Meanwhile, the Managing Committee of Varanasi’s Gyanvapi Mosque has moved the Supreme Court, seeking the dismissal of the petitions against the Places of Worship Act, saying that consequences of declaring the 1991 Act unconstitutional are bound to be drastic and will obliterate the rule of law and communal harmony.
It said that an Article 32 petition challenging a legislative enactment must indicate the unconstitutionality of the provisions based on constitutional principles and the rhetorical arguments seeking a sort of retribution against the perceived acts of previous rulers cannot be made the basis for a constitutional challenge.
“The Parliament, in its wisdom, enacted the legislation as a recognition of secular values of the Constitution. The applicant humbly submits that while this Hon’ble Court considers this challenge to the 1991 Act, the petition may be dismissed as being devoid of merits,” the application added.
It said that it was only after thorough deliberation and debate that the Parliament, in its wisdom and legislative competence, enacted the 1991 Act as a conscious decision to let the past not haunt the future of the country and the 1991 Act is a legislation recognising the preambular values of secularism and fraternity.
“Almost three decades from the enactment of the 1991 Act, the petitioner seeks to lay a challenge to the same by way of petition that is replete with rhetorical and communal claims which cannot be entertained by this Hon’ble Court,” the application stated.
It added that “the consequences of the declaration sought by the petitioner are bound to be drastic. As seen recently in Sambhal, Uttar Pradesh where a court permitted a survey of the Shahi Jama Masjid by allowing an application for appointment of Survey Commissioner the very day when the suit was presented, in ex parte proceedings, the incident led to widespread violence and has claimed, as per reports, at least six citizens’ lives. The declaration sought by the petitioner would mean such disputes rising their head in every nook and corner of the country and ultimately obliterate the rule of law and communal harmony.”
The Managing Committee of the Gyanvapi Mosque has been made the subject of a litany of cleverly drafted suits filed seeking the right to have worship within the mosque, terming it as an old temple, said the application, adding that some of the suits seek removal of the mosque’s structure and for injunction against Muslims to use the mosque.
“However, a common thread that runs through all the cases is the said suits being under the interdict of Sections 3 & 4 of the 1991 Act. Therefore, the applicant is a crucial stakeholder in the challenge and seeks to assist this Hon’ble Court by way of the present intervention,” the application stated.
Further, it said that at present, as many as 20 suits are pending before different Varanasi courts seeking to nullify the protection accorded by the 1991 Act and to convert the character of the Gyanvapi Mosque and prevent access of Muslims to the mosque.
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