'Discriminates Against Hindus': Plea In SC Challenges Constitutionality Of Section 4 Of Places of Worship (Special Provisions) Act [Read Petition]

The Supreme Court has been moved in a petition challenging the Constitutional validity of Section 4 of The Places of Worship (Special Provisions) Act, 1991 on the touchstone of Articles 14, 15, 25, 26 and 29(1) of the Constitution of India and also on the argument that it violates the principles of secularism. Section 4(1) of the impugned Act states as under:- "It is hereby declared that the religious character of a place of worship existing on the 15th day of August 1947 shall continue to be the same as it existed on that day." Section 4(2) of the impugned Act provides that:- "If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority; Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1)". The petitioners, who claim to be followers of Hinduism, contend that the Parliament by making impugned provision has created a cut off date with retrospective effect to implement the Act, i.e. w.e.f. 15.8.1947 declaring that the character of a place of worship as was on 15.8.1947 shall be maintained and no suit or any proceeding shall lie in any court including High Court in respect of any dispute against encroachment of religious properties made by unsocial elements or by law breakers at any point of time before 15.08.1947. Such proceeding shall stand abated, and further, if any suit, appeal or the proceeding is filed on the ground that conversion of religious place has taken place after 15.8.1947 and before 18.9.1991 (date of the enforcement of the Act), the same shall be disposed off in terms of sub section (1) of Section 4 i.e. to maintain the status as was existing on 15.08.1947. "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 result is that Hindu devotees cannot raise their grievance by instituting any suit in Civil Court or invoking the jurisdiction of the Hon'ble High Court under Article 226 of the Constitution of India against high handedness of ultras and will not be able to restore back the religious character of Hindu Endowments, Temples, Mutts etc from hoodlums if they had encroached upon such property before 15th August 1947 and such illegal and barbarian act will continue in perpetuity",it is argued. It is urged that the Parliament by making the impugned provision has, without resolution of dispute through process of the Court, abated the suit and proceedings which is per se unconstitutional and beyond the law making power of Parliament for the reason that the impugned provision cannot be implemented with retrospective effect and the remedy of resolution of dispute pending, arisen or arising cannot be barred by the Parliament and the Parliament cannot close the doors for aggrieved persons and cannot take away the power of the Courts of first instance, Appellate Courts and the power of Constitutional Courts conferred under Article 226 and 32 of the Constitution of India. "The maxim ubi jus ibi remedium has been frustrated by the impugned provision as pending suits or any proceeding in respect of which cause of action has already arisen and there is continuing wrong, the remedy of the aggrieved person for resolution of disputes through courts has been abolished, violating the very concept of justice and theme of 'Rule of law', one of the pillars of our Constitution. The right to religion and administer religious property guaranteed by Article 25 and 26 of the Constitution of India is infringed and an embargo created to preserve the religious and cultural heritage of the country in exercise of fundamental duty cast upon every citizen under Article 51-A (f) of the Constitution of India", it is contended. The plea states that the impugned Act destroys the basic principle of Hindu law enshrined in Vedas, Shastra, Smritis and religious scriptures of Hindu Dharma that Idol represents the supreme being and so its existence is never lost and deity cannot be divested from its property even by any Ruler or King. The Hindu devotees have a fundamental right under Article 25 to worship the deity at the place 'It' is and utilise the deity's property for religious purposes subject to morality, health and public order. "The parliament cannot restrain Hindu devotees to get back their religious places of worship...

'Discriminates Against Hindus': Plea In SC Challenges Constitutionality Of Section 4 Of Places of Worship (Special Provisions) Act [Read Petition]

Mehal Jain

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