New Delhi, September 9
The Supreme Court on Friday asked the Centre to respond to petitions challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991, that mandates status quo with regard to character of places of worship as existing on August 15, 1947.
A three-judge Bench led by Chief Justice of India UU Lalit gave two weeks to the Centre to file its reply after Solicitor General Tushar Mehta sought time to respond, and posted the matter for October 11.
The Bench -- which also included Justice S Ravindra Bhatt and Justice PS Narasimha -- allowed all the intervention applications of various parties, including the one filed by a daughter of the royal family of Kashi.
The petitioners and intervenors included BJP leader Subramanian Swamy and Ashwini Upadhyay, retired Army officer Anil Kabotra, advocates Chandra Shekhar and Rudra Vikram Singh, Devkinandan Thakur, Swami Jeetendranand Saraswati, and former BJP MP Chintamani Malviya, besides others.
The top court asked the parties to file written submissions, not exceeding five pages, to enable it appreciate their respective case.
Considering the issues involved, it should be heard by a Bench of three judges, it said.
As senior counsel Rakesh Dwivedi suggested that the matter be referred to a Constitution Bench, the CJI said the three-judge Bench would take a call on the issue.
The controversial law created a retrospective cut-off date and declared that the character of places of worship would be maintained as it was on August 15, 1947.
The top court had earlier sought the Centre's response to Upadhyay's plea challenging the validity of certain provisions of the 1991 law, which prohibit the filing of a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on August 15, 1947.
Jamiat Ulama-i-Hind – a prominent Muslim organisation -- has also moved the Supreme Court seeking dismissal of petitions challenging the validity of the Places of Worship Act, saying it would open floodgates of litigation against countless mosques across India and “the religious divide from which the country is recovering in the aftermath of the Ayodhya dispute will only be widened”.
The petitioners have contended that the 1991 law created 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”.
They have challenged the constitutional validity of Sections 2, 3, and 4 of the 1991 Act on the grounds that Parliament “transgressed its legislative power” by barring remedy of judicial review – a basic feature of the Constitution and the impugned provisions violated principles of secularism.
Section 3 and Section 4 of the Act deal with the bar of conversion of places of worship and declaration as to the religious character of certain places of worship and the bar of jurisdiction of courts, respectively.
The petitions against the 1991 Act are being seen as an attempt to start a legal battle to reclaim disputed religious sites at Kashi, Mathura and some other places where disputed mosques stand.
In its unanimous November 9 verdict on the Ayodhya issue, 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 petitioners have sought directions to declare Section 4 of the 1991 Act unconstitutional. They said 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," read one of the petitions.
By making the impugned provision, Parliament has without resolution of dispute, through process of court, abated the suit and proceedings, which is per se 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 petitioners submitted.
It cannot make any law which takes away or abridges the vested religious right of devotees and cannot make any law with retrospective effect, they said, invoking fundamental right to religion under Article 25 of the Constitution.
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