Supreme Court Refuses To Entertain Another Petition Challenging Places Of Worship Act; Allows Petitioner To Intervene In Pending Proceedings

The Supreme Court today (April 1) refused to entertain a writ petition challenging the validity of S.4(2) of the Places of Worship Act 1991 which provides any legal proceedings on the religious character of a place of worship initiated before August 15, 1947 shall be terminated on the commencement of the Act. The Court however granted liberty to the petitioner to file an application in the pending challenge to Act under the main title Ashwini Kumar Upadhyay v. Union of India.Notably, the Court is already seized of a batch of petitions regarding the validity of the Places of Worship Act 1991. The bench comprising Chief Justice of India Sanjiv Khanna, Justices PV Sanjay Kumar and KV Viswanathan on December 12 passed a significant order halting fresh suits and survey orders against religious places.The bench of CJI Sanjiv Khanna and Justice Sanjay Kumar at the outset noted that the present plea was no difference from the pending challenging. CJI said, "This is the same plea, what is the difference?" The Counsel for the petitioner however urged the Court to tag it with the pending batch and consider it for hearing. He also stressed, "There is a subtle difference in what is being said, I'll address the Court" Declining to entertain the matter any further, the Bench ordered " We are not inclined to interfere in the present petition under Article 32 of the Constitution." The Petitioner was granted liberty to move an application under the pending challenge. Notably, on December 12, while hearing the pending challenge, the Court ordered that in pending suits (such as those concerning Gyanvapi mosque, Mathura Shahi Idgah, Sambhal Jama Masjid etc.), the Courts should not pass effective interim or final orders, including orders for survey. The interim order was passed while hearing a batch of petitions challenging the Places of Worship (Special Provisions) Act, 1991 and also a petition seeking the implementation of the Act.A detailed account of disputes against Mosques and Dargahs claiming temples beneath them can be read here.Why Is S.4(2) Of The Act Challenged? The petition has expressly challenged S.4(2) of the Places of Worship Act 1991 which states 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 place 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)" S.4(1) declares 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 Act has been challenged, inter-alia, on the ground that it violated the rights to take back properties of the deity, which have been misappropriated by other communities, and thereby infringed the fundamental rights under Article 25, 26, 29 of the Constitution.It is contended that the provision violated the doctrine of Hindu law that 'Temple property is never lost even if enjoyed by strangers for years and even the king cannot take away property as deity is embodiment of God and is juristic person, represents 'Infinite the timeless' and cannot be confined by the shackles of time.'The plea mainly states " that the only part of the Act that is liable to be struck down is Section 4 (2). This provision not only close the doors of mediation but also takes away the power of the judiciary. The legislature cannot take away the power of the judiciary to preside over disputes. This has been done through colourable legislation. If these matters are not fit to be in court, does the legislature have the power to decide so? Even to see whether the issue is fit to be raised in Court or not, it will have to go into the Court. And that power has been encroached upon by the legislature. This is a grave violation of Separation of powers- a part of the basic structure. Petitioner submits that Centre neither can close the doors of Courts of First Instance and Appellate Courts nor take away the power of Apex Court and High Courts, conferred under Articles 32, 226 and 227." The plea further claims that the Act does not mention changes in the structure of the building to mean changes in the religious character of the building and any 'structural change' can be done to restore the orginal character of the place of worship : "There has been no mention of the words Building/Structure/Edifice /Construction and others similar words in...

Supreme Court Refuses To Entertain Another Petition Challenging Places Of Worship Act; Allows Petitioner To Intervene In Pending Proceedings

Anmol Kaur Bawa

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