At a time when suits seeking surveys of mosques and dargahs have rekindled a debate across the country, the Supreme Court has constituted a special bench to hear on December 12 a clutch of pending petitions challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991.
The special bench comprises Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan.
The Places of Worship (Special Provisions) Act, 1991 mandates that the nature of all places of worship, except the one in Ayodhya that was then under litigation, shall be maintained as it was on August 15, 1947. The Act, brought in by the P V Narasimha Rao-led Congress government during the height of the Ram temple movement, was also meant to apply to the disputed Kashi Vishwanath temple-Gyanvapi mosque complex in Varanasi and the Krishna Janmabhoomi temple-Shahi Idgah mosque complex in Mathura.
Several petitions have challenged the Act, saying it bars the remedy of judicial review which the Supreme Court, in its 1980 judgment in Minerva Mills Ltd. & Ors vs Union Of India & Ors, said was a basic feature of the Constitution and, therefore, outside the legislative competence of Parliament. The Act, the petitioners have said, also violates the principle of secularism.
Hindu groups have been demanding that the Act be scrapped. The government is yet to take a stand on the issue before the court despite being issued notice more than three years ago.
The Act declares that the character of a place of worship as of August 15, 1947, shall be maintained and that no suit or proceeding shall lie in any court in respect of any dispute against the encroachment of any religious properties at any point in time before this date.
It also says that any such pending proceeding shall stand abated and that any proceeding filed on the grounds that conversion of religious place has taken place after August 15, 1947, and before September 18, 1991 (when the Act came into existence), shall be disposed of to maintain the status as existed on August 15, 1947.
In the Minerva Mills judgment, the Supreme Court had said “the power of judicial review is an integral part of our constitutional system and without it there will be no government of laws, and the rule of law would become a teasing illusion and a promise of unreality”.
“If there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably a part of the basic structure of the Constitution,” it stated.
In June 2020, a Lucknow-based trust, Vishwa Bhadra Pujari Purohit Mahasangh, had moved the Supreme Court, challenging the Act. A few days later, the Jamiat Ulama-i-Hind, too, approached the court, seeking permission to be made a party in the matter. The Jamiat told the court that “even issuance of notice in the… 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”.
Subsequently, a few more petitions were filed in the matter, including one by a representative of the erstwhile royal family of Kashi. The court said it did not want to multiply the number of writ petitions on the same issue and asked the parties to instead file intervention applications.
It issued notice on the clutch of petitions and, on March 12, 2021, sought the Centre’s response. Later, the hearing was adjourned multiple times following requests from the Centre for more time to respond. The government is yet to file a reply.
The plea filed by the representative of the erstwhile Kashi royals said that “for a legislation that shuts the doors of justice to affected communities and parties, it was “debated” only on three dates i.e., 23.08.1991, 09.09.1991 and 10.09.1991, and the Bill was passed on the last of the said dates”.
“The debate of 23.08.1991 clearly captures the fact that the period of seven days’ notice was not afforded to the members of the Lok Sabha before the Places of Worship (Special Provisions) Bill dated 22.08.1991 was introduced,” the petition stated.
Opposing these petitions, the management committee of the Gyanvapi mosque in Varanasi too has filed an intervention application, saying the “consequences” of allowing such pleas “are bound to be drastic”.
The mosque committee pointed to the violence in Sambhal, Uttar Pradesh, where a court permitted the survey of the Shahi Jama Masjid by allowing an application for the appointment of a survey commissioner the very day the suit was presented.
ExplainedIn other courts, other pleas
The 1991 Act, which left Ayodhya to the courts, froze the status of a place of worship as was on the day of India’s independence. While the Supreme Court is still to decide the challenge to the Act, suits are being filed in different courts for surveying mosques believed to have been built on sites where temples once existed.
“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 raising their head in every nook and corner of the country and will ultimately obliterate the rule of law and communal harmony,” the committee stated.
Two days ago, former Supreme Court judge Rohinton Nariman expressed concern over the suits seeking surveys of mosques and dargahs.
“We find today, like hydra heads popping up all over the country, there is suit after suit filed all over the place… Now not only concerning mosques but also dargahs. All this can lead to communal tension and disharmony, contrary to what is envisaged in both our Constitution and the Places of Worship Act,” Justice Nariman said while delivering the inaugural lecture of the Justice A M Ahmadi Foundation on ‘Secularism and the Indian Constitution’.
He also referred to what was said of the Act in the 2019 verdict on the Ayodhya matter by a five-judge Constitution Bench. “This very Constitution Bench spends five pages on it and says that in secularism, which is a part of the Basic Structure, you cannot look backwards, you have to look forward… Every religious place of worship is frozen to 15th August 1947. Now anybody who tries to change this, those suits will stand dismissed,” he said.
The bench will be headed by Chief Justice of India Sanjiv Khanna and include Justices Sanjay Kumar and K V Viswanathan. (File photo) 
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