Petition challenging constitutionality of 1991 Places of Worship Act admitted by Supreme Court

The Supreme Court admits petitions challenging the constitutionality of the Places of Worship Act, 1991, giving rise to fears that this will reopen old wounds that were sought to be healed by the provisions of the Act.

The Sri Krishna Janmabhoomi temple and Shahi Idgah mosque in Mathura.

IN its historic judgment on the Ayodhya dispute in November 2019, the Supreme Court made a reference to the Places of Worship Act, 1991. The court stated: “In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered. The law addresses itself to the state as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism, which is a part of the basic structure of the Constitution.”

The bench observed: “The Places of Worship Act, which was enacted in 1991 by Parliament, protects and secures the fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of thought, expression, belief, faith and worship. It emphasises human dignity and fraternity. Tolerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept of fraternity.…”

The judgment in favour of those pleading for the construction of a Ram temple, it was hoped, would settle the dispute once and for all, more so as all contending parties had accepted it. However, within nine months of the Ayodhya judgment, in which the Supreme Court had hailed the Places of Worship Act, the 1991 Act was questioned. The court has admitted petitions challenging the constitutionality of the 1991 Act. Many fear that the admission of the petition would reopen old wounds that were sought to be healed by the provisions of the Act. They pointed out that the Kasi and Mathura mosques would now be targeted by Hindutva forces that believe a favourable ruling on the Act would encourage the government to repeal the Act.

In July 2020, it the Lucknow-based Vishwa Bhadra Pujari Purohit Mahasangh filed a petition in the Supreme Court through advocate Vishnu Jain seeking directions to declare Section 4 of the 1991 Act ultra vires the Constitution. The petitioners insisted that the remarks made in the Ayodhya verdict were mere observations without any judicial force as the Places of Worship Act was not under challenge in that case. “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,” the petition contended.

In March 2021, the Supreme Court admitted the petition of Ashwini Upadhyay, former spokesman of the Bharatiya Janata Party (BJP), challenging the constitutional validity of Sections 2, 3, and 4 of the 1991 Act, alleging that they offended Articles 14, 15, 21, 25, 26 and 29 of the Constitution and violated the principles of secularism, which are an integral part of the basic structure of the Constitution and the Preamble.

Arbitrary cut-off date

Ashwini Upadhyay, who has been in the limelight in view of his petitions on the subjects of nikah halala and polygamy, contested the “arbitrary irrational retrospective cut-off date,” and “unjustified bar on the remedies against illegal encroachment on the places of worship and barbaric acts of the invaders”. He said: “It [the Act] violates the principles of secularism enshrined in the Constitution. The Centre, by making the impugned provisions in 1991, has created arbitrary irrational cut-off date, declared that character of places of worship and pilgrimage shall be maintained as it was on 15/8/1947 and no suit or proceeding shall lie in court in respect of the dispute against the encroachment done by barbaric fundamentalist invaders and such proceedings shall stand abated.”

Though the court had earlier approved of the cut-off date of August 15, 1947, its decision to admit the petition, attracted another petition; this time by Wasif Hasan, caretaker of Lucknow’s well-known Teelay Wali Masjid. He moved an application for intervention before the court in the challenge to the Places of Worship Act.

“The language of the petition is shocking. Petitioner has sought to set up an allegedly factual case of fundamentalist barbarians coming to India and destroying places of worship without providing facts, sources or setting up a case that any such place of worship has been destroyed,” the Lucknow mosque petition read.

Last year, the Jamiat Ulema-e-Hind filed a plea that the court should not entertain any petition against the 1991 Act. It argued: “It is submitted that 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.” The Jamiat, which is now gearing up in defence of the Act through advocate Shahid Nadeem, had added that the Places of Worship (Special Provisions) Act was enacted to fulfil two purposes. First, it prohibits the conversion of any place of worship, and in doing so, speaks to the future by mandating that the character of a place of worship shall not be altered. Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on August 15, 1947.

“A year ago, when Hindu saints challenged the Places of Worship Act, the Supreme Court issued notice and we intervened. That matter is still pending,” said Nadeem.

But should the court have admitted a petition of that nature, given the fact that it had expressly referred to the Act in its Babri Masjid judgment?

Shahid Nadeem said: “They have admitted the PIL [public interest litigation petition] filed by Ashwini Upadhyay. This matter will be tagged with the earlier matter. Upadhyay contends that the Central government has no power to make a law. The law was passed by Parliament. The Supreme Court will decide on that. It will be discussed and debated by the court. I cannot comment but in the Babri Masjid judgment, the Supreme Court upheld the Places of Worship Act and had said that the status quo of places of worship, as at the time of Independence, would be maintained.”

On the contention that the court had merely referred to the Act, he said, “No, in its verdict the court had discussed the Places of Worship Act, too. A chapter was devoted to it in the final judgment.”

What does the act of petitioners approaching the court within nine months of the Supreme Court’s Ayodhya verdict signal? Shahid Nadeem said: “They feel they can have their way. We have had nikah halala , polygamy cases, another petition for uniform civil code. This petition is part of the same chain aimed to marginalise the minorities further. If you notice, it is a particular party and people of a certain ideology who are behind it. I tend to see these petitions against the 1991 Act as an attempt to know the court’s intentions. But I am certain the Places of Worship Act is foolproof. We should let the court discuss and debate.”

Noted advocate Warisha Farasat rubbishes any parallel with the nikah halala or polygamy cases. “There is hardly justification for linking the two with the Places of Worship Act,” she says.

Advocate Rajneesh Chuni sees no reason to panic or imply motives. “The petition challenges Section 4 of the Act. It wants a more retrospective cut-off date than August 15, 1947. The Section 4 applies to all cases except the Babri Masjid case at that time. It applies even to those cases which were going on in various courts at that time. They are trying to prove that the Act is ultra vires . It comes 30 years after the Act was promulgated. It will have many repercussions as there are plenty of cases that would be waiting in the pipeline. Mathura, Kashi… etc. It will open the floodgates. But the court is still to decide on the matter. The case has not been listed yet. A new Bench will hear it. As of now, only a notice has been issued. Not returnable. It may take another six months or whatever, one does not know. Obviously there is a line of argument that the court could have dismissed it straight away but the petition can be dismissed later on also after the hearings. It is no time to panic.”

Kasi, Mathura, the Lucknow mosque…. The spotlight may just shift from Ayodhya soon. The question is, will the Supreme Court reiterate the stand it had taken on the Places of Worship Act in its Ayodhya verdict?