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 through judicial process and cannot make any law which takes away or abridges the vested religious right of devotees and cannot make any law with retrospective effect. The Parliament has transgressed its legislative power in barring remedy of judicial review which is a basic feature of the Constitution", it is advanced.
The petitioners submit that from the catena of decisions of this Court it is well established that the right to judicial remedy cannot be taken away by the State and the power of Constitutional Courts under Article 32 and 226 cannot be frustrated and such denial has been held to be violative of the basic feature of the Constitution and beyond legislative power of parliament.
"The Parliament while enacting the Act has excluded the property in dispute at Ayodhya for which Hindus have been fighting for restoration of temple, massive public agitation was taken up and the same was affecting the political scenario of the country. This Hon'ble Court has finally decided the Ayodhya dispute vide judgment dated 09.11.2019. The Hon'ble Court found substance in the claim of Hindus and now a new temple is going to be constructed after about 500 years of demolition of temple complex. In case it had not been decided, the Hindu devotees would have been denied justice. Therefore any restriction on the right to approach the Civil or High Court is against the basic principle of rule of law, a necessary component of a welfare State", stresses the petition through Vishnu Shankar Jain and Hari Shankar Jain.
The substance of the case is that the impugned Act is ultra vires to the Constitution of India as it :-
I. infringes right of worship of Hindus guaranteed by Article 25 of the Constitution of India.
II. deprives the right of Hindu Community under Article 26 of the Constitution of India from maintaining and managing the religious properties belonging to deity usurped by members of other communities.
III. takes away the remedy of Hindus to take back the places of worship and property attached thereto through Court which originally belong to a deity, and worship is being continuously performed thereat by devotees in a number of ways.
IV. deprives the members of Hindu community to take back their place of worship connected with the cultural and religious heritage of India. It is noteworthy that Hindu Devotees are paying homage to their ancient religious places and continuously worshiping even though physical possession wholly or partly have been taken by members of another fate only to trample the cultural Heritage of Hindus.
V. discriminates Hindus with the members of Muslim Community in the matter of restoring possession of places of worship denying equality before the law guaranteed under Article 14 of the Constitution of India.
VI. validates the illegal and barbarous action of invaders restricting the right of Hindus to claim possession of the property whereas similarly situated Muslims can claim possession under Waqf Act as no limitation runs for them. Section 107 of waqf Act 1995 provides that 'Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any Waqf or for possession of any interest in such property.'
VII. violates the concept of the Hindu law that 'Temple property is never lost even if it is enjoyed by strangers for hundreds of years; even the king cannot deprive temples of their properties. The Idol/deity which is an embodiment of supreme God and is a juristic person, represents the 'Infinite- the timeless' cannot be confined by the shackles of time.'
VIII. According to Vedas-Puranas, Upnishads and other sources of Hindu Law it is a recognised principle that 'once a deity property will continue to be deity property' and nobody's possession will be valid. In case of Mahant Ram Swaroop Das Ji Vs S.P. Shahi Special Officer – In charge of Hindu Religious Trusts, it has been held that:-
"Even if the idol gets broken or is lost or stolen, another image may be consecrated and it cannot be said that the original object has ceased to exist."
IX. takes away the right and remedy both of deity and worshiper whereas parliament cannot take away the power of the Constitutionals Courts. The Parliament cannot take away the right of civil courts to entertain suits without creating any alternative forum. The remedy of a devotee to get back possession of religious places originally belonging to any sect and/or religious denomination is taken away.
X. is in violation of equality clause embodied in Article 14 of the Constitution as similarly situated members of Muslims community can take back a Waqf property without there being any period of limitation and as such the Act discriminates Hindus with similarly situated members of other community and the impugned Act is against the principle of Secularism as accepted by the Constitution of India.
[Update] The matter came before a Three Judge Bench headed by CJI Bobde. Petitioners sought an adjournment .SC Posted it after 4 weeks [WP (C) 559/2020]
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