Supreme Court’s Ayodhya verdict faces Kashi test: Mosque plea hearing today

Incidentally, the Act itself is under challenge before the top court with at least two pending petitions questioning its Constitutional validity on the ground that it bars judicial review, which is a basic feature of the Constitution, and abridges the right to religion of Hindus, Jains, Buddhists and Sikhs.

Although the SC issued notice on one of them in March 2021, the Centre is yet to file its reply.

The appeal by the Masjid Committee, which challenges the April 21, 2022 Allahabad High Court ruling dismissing its petition against the order of a Varanasi court ordering the videographic survey of the disputed side, is listed Tuesday before a Supreme Court bench of Justices D Y Chandrachud and P S Narasimha.

Significantly, a five-judge Constitution bench of the then Chief Justice of India Ranjan Gogoi and Justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer had, in the Ayodhya judgment of November 9, 2019, lauded the Places of Worship Act as “a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution”.

In that 5-0 unanimous verdict — on the title suit — in the wake of the Babri Masjid demolition, the Supreme Court ruled that the 2.77 acres of disputed land in Ayodhya would be handed over to a trust for the construction of a Ram Mandir and a 5-acre plot allotted to the Sunni Waqf Board at an alternate site.

The Masjid Committee’s appeal contends that an earlier suit filed in 1991 by some devotees alleging that the Gyanvapi mosque was built after demolishing a temple had been stayed by the HC and the present proceedings which were instituted in 2021, were an attempt to get around the stay.

It also said that the proceedings are “an attempt to disturb the communal peace and harmony and in contravention to the Places of Worship Act”.

The local court, said the Mosque Committee, should have first heard its application seeking rejection of demand for being barred by the Act, before going ahead.

Hearing a petition by five Hindu women seeking round-the-year access to pray at “a shrine behind the western wall of the mosque complex”, a civil court in Varanasi had on April 8, 2022, appointed Advocate Commissioner Ajay Kumar Mishra to carry out an inspection of the disputed site — and directed him to “prepare videography of the action” and submit a report.

On April 21, the Allahabad High Court dismissed a petition filed by the mosque committee challenging this local court’s order. On April 26, the Varanasi court again ordered videography of the disputed site.

Though the inspection began, it was halted after the mosque committee filed an application in the court, alleging bias, and seeking replacement of the court-appointed Advocate Commissioner. On May 12, the Varanasi court rejected the prayer to change Advocate Commissioner Mishra and ordered resumption of the video survey — even if it meant getting “locks opened/ broken”. The inspection report should be submitted on May 17, it said.

The two petitions challenging the Places of Worship Act have been filed by Lucknow-based trust ‘Vishwa Bhadra Pujari Purohit Mahasangh’ along with some followers of Sanatan Vedic Religion, and Advocate Ashwini Upadhyay.

On March 12, 2021, a bench headed by the then Chief Justice of India S A Bobde issued notice on Upadhyay’s plea. The Centre has not filed a reply and the matter has not come up for hearing.

Upadhyay’s petition contends that the Act “has created arbitrary irrational retrospective cutoff date” and “has barred the remedies against illegal encroachment on the places of worship and pilgrimages and now Hindus, Jains, Buddhists, Sikhs cannot file suit or approach High Court under Article 226”.

It said the Act is “unconstitutional and beyond its (Parliament’s) law making power” as it has “frustrated” the principle of law ‘ubi jus ibi remedium (where there is a right, there is a remedy), “thus violating the concept of justice and Rule of Law, which is core of Article 14”.

Besides, Article 13(2) also prohibits State from making any law which takes away or abridges fundamental rights conferred under Part-III of the Constitution and any law made in contravention to basic rights is void, it pointed out.
The petition by the Lucknow trust has put forth similar arguments and questioned how any law can bar the right to seek judicial review of a grievance.

Soon after the Lucknow trust approached the court in June 2020, the Jamiat Ulema-I-Hind filed an impleadment application opposing it.

Urging the court not to even issue a notice claiming that that “will create fear in the minds of the Muslim community,” it said that if the petition is entertained, “it will open floodgates of litigation against countless mosques in the country and the religious divide from which the country is recovering in the aftermath of the Ayodhya dispute will only be widened”.