SC issues notice to Centre on BJP leader’s plea to open Kashi, Mathura temple disputes

Satya Prakash
Tribune News Service
New Delhi, March 12

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Sixteen months after paving the way for the construction of Ram Temple at Ayodhya, the Supreme Court on Friday issued notice to the Centre on a petition filed by a BJP leader’s petition seeking to open Kashi and Mathura temple disputes.

A Bench led by Chief Justice of India SA Bobde asked the Centre to respond to Delhi BJP leader and advocate Ashwini Upadhyay’s petition challenging the validity of certain provisions of the Places of Worship (Special Provisions) Act, 1991, which said the character of religious places—except the Ram Janmabhoomi-Babri Masjid at Ayodhya—at the time of Independence can’t be changed.

Courts at Varanasi and Mathura are already seized of petitions on the issue. The petition is being seen as an attempt to start a fresh legal battle to reclaim disputed religious sites at Kashi, Mathura and some other places.

Represented by senior advocates Vikas Singh and Gopal Sankaranarayanan, the BJP leader alleged that the 1991-law creates an “arbitrary and irrational retrospective cut-off date” of August 15, 1947, for maintaining the character of the places of worship or pilgrimage against encroachment done by “fundamentalist-barbaric invaders and law-breakers”.

Sections 2, 3, 4 of the Places of Worship (Special Provisions) Act, 1991 be set aside on grounds including that these provisions take away the right of a judicial remedy to reclaim a place of worship of any person or a religious group, the petition contended.

Earlier, ‘Vishwa Bhadra Pujari Purohit Mahasangh’ had moved the top court in June 2020 challenging the validity of the 1991 Act.

Jamiat Ulama-i-Hind—which works for Islamic causes—has already moved the top court against the Mahasangh’s plea, saying it will open floodgates of litigation against countless mosques.

In its plea filed in June last year, it had urged the top court not to entertain Mahasangh’s petition. “Even issuance of notice in the present matter will create fear in the minds of the Muslim community with regard to their places of worship, especially in the aftermath of the Ayodhya dispute and will destroy the secular fabric of the nation,” Jamiat had said in its intervention application.

In its unanimous November 9 verdict, a five-judge Bench headed by the then CJI Ranjan Gogoi had described the 1991 Act as a legislative instrument designed to protect the secular features of Indian polity.

But now the Mahasabha and Upadhyay have sought directions to declare Section 4 of the 1991 Act unconstitutional. The Mahasabha contended the top court’s remarks were mere observations without any judicial force as the Act was not under challenge before it.

“The impugned Act has barred the right and remedy against encroachment made on religious property of Hindus exercising might of power by followers of another faith,” it said.

By making the impugned provision, Parliament has without resolution of the dispute, through process of court, abated the suit and proceedings, which is perse unconstitutional and beyond its law making power, it said.

Parliament cannot restrain Hindu devotees from getting back their religious places of worship through the judicial process, the plea said.

It cannot make any law that takes away or abridges the vested religious right of devotees and cannot make any law with retrospective effect, it said, invoking the fundamental right to religion under Article 25 of the Constitution.

Mahasabha said Parliament cannot restrain Hindu devotees to get back their religious places of worship through the judicial process and cannot make any law that takes away or abridges the vested religious right of devotees and cannot make any law with retrospective effect.

Upadhyay submitted that the Centre has barred the remedies against illegal encroachment on places of worship and pilgrimage of Hindus, Jains, Buddhists and Sikhs, who cannot file a suit or approach a high court.