Dear friends

As you all are well accustomed with this fact that the legality, validity and prosperity of the Places of Worship (Special Provisions) Act, 1991 is challenged by Shri Ashwini Upadhyay (Advocate Supreme court) by placing a Writ Petition (bearing WP (Civil) No. 1246 of 2020) before the Division bench of the Hon’ble Supreme Court comprising the Hon’ble Chief Justice SA Bobde and HH Justice AS Bopanna J. The Hon’ble Supreme court was pleased to issue the Notice to the Centre on the plea.

It is the matter of research and discovery as why the legality and the validity of an Act is challenged by the citizen of India by filing a PIL and thereby claiming that the provisions of the law “not only offend Articles 14 (equality), 15 (prohibits discrimination of Indians on basis of religion, race, caste, sex or place of birth), 21 (protection of life and personal liberty), 25 (freedom of conscience and free profession, practice and propagation of religion), 26 (freedom to manage religious affairs) and 29 (protection of interests of minorities), but also violate the principles of secularism, which is an integral part of the Preamble and the basic structure of the Constitution”.

Background

The law was brought by the Congress Government under the leadership of Shri P. V. Narsnharao in at the peak of the Shri Ram Mandir movement, exactly a year before the demolition of the disputed structure named as Babri Masjid i.e. in the year 1989. Introducing the law, then Home Minister Shri S. B. Chavan preached in the Parliament that it was adopted to curb communal tension. In 1991, the BJP had staged a walkout when the bill was taken up for consideration and passage in Parliament. Uma Bharati had then bellowed in the Lok Sabha: “By maintaining the status-quo of 1947, it seems you are following a policy of appeasement. Owners of bullock carts in villages create a wound on the back of the ox and when they want their bullock-carts to move faster, they strike at the wound. Similarly, these disputes are wounds and marks of slavery on our Bharat Mata. So long as Gyanvapi continues in its present condition at Banaras and a grave remains in a temple at Pavagarh, it will remind us of the atrocities perpetrated by Aurangzeb.”

The BJP had opposed the law, arguing that the Centre has no power to legislate on “pilgrimages” or “burial grounds” which is under the state list. However, the government had said it could make use of its residuary power under Entry 97 of the Union List to enact this law. Entry 97 confers residuary powers to the Centre to legislate on subjects that are not enumerated in any of the three lists.

Places of Worship (Special Provisions) Act, 1991:- the Main Provisions of this Act can be summarised as under:-

Section 3. Bar of conversion of places of worship.

“No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.

Section 4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc.

(1) 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.

(2) 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).

(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,–

(a) any place of worship referred to in the said sub- sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958.) or any other law for the time being in force;

(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act;

(c) Any dispute with respect to any such matter settled by the parties amongst themselves before such commencement;

(d) Any conversion of any such place effected before such commencement by acquiescence;

(e) Any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal or other authority being barred by limitation under any law for the time being in force.

Section 5. Act not to apply to Ram Janma BhumiBabri Masjid. Exceptions

Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.

Section 6. Punishment for contravention of section 3.

(1) Whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

(2) Whoever attempts to commit any offence punishable under sub- section (1) or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.

(3) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under sub-section (1) shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, (45 of 1860.) be punishable with the punishment provided for the offence.

Section 7. Act to override other enactments.

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act.

[1]Be pleased to note here that The Supreme Court held that the mosque is not an essential part of Islam. Namaz (Prayer) can be offered by the Muslims anywhere, in the open as well and it is not necessary to be offered only in a mosque. 

[2]The Hon’ble Supreme Court held that the State has the sovereign or prerogative power to acquire the property. The state also has the power to acquire places of worship such as mosque, church, temple, etc. and the acquisition of places of worship per se is not violative of Articles 25 and 26. However, the acquisition of place of worship which is significant and essential for the religion and if the extinction of such place breaches their (persons belonging to that religion) right to practice religion then the acquisition of such places cannot be permitted.

The Sections of “Places of Worship (Special Provisions) Act, 1991 “, which are challenged under the said PIL:-

1:- Through the provisions as prescribed under section 3 and 4 of this Act, the act amounts to snatching the right of the people to seek justice through the courts and obtain a judicial remedy. The Act restrains the communities such as Hindus, Sikhs, Buddhists and Jains by taking away their legitimate rights to reclaim the sites of their places of worship through legal proceedings as such places were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.

2:- That the Centre was not having any power to legislate on “pilgrimages” or “burial grounds” which is under the state list. The parliament has transgressed its legislative power in barring remedy of judicial review which is basic feature of the Constitution, the plea claimed.

3:– The cut-off date of August 15, 1947, is arbitrary and irrational and, which means that the status quo determined by a colonial power is considered final.

4:– Petition contends that the legislation legalises the actions of invaders in the past who demolished places of worship. It wonders how the law could exempt the birthplace of Shri Ram but not that of Shri Krishna.

5:- Petition also said the law as prescribed in the said Act, violates the right to practise and propagate religion, as well as the right to manage and administer places of worship. 

6:- Petition has also established that the act goes against the principle of secularism and the state’s duty to preserve and protect religious and cultural heritage.

7:- Article 14 of our great constitution established that “Every citizen of India is equal before the law” and hence when the equality of the law is secured by the constitution of India, how the Hindus, Sikhs, Jain and Budhdhist can be restrained by the Central Government from claiming their rights to reclaim the sites of their places of worship through legal proceedings, by enacting such Act under the shelter to curb communal tension.

8:- Article 15 established the Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth;

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them;

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) Access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Hence why the central government made such kind of discrimination by depriving the communities like HINDU, Budhdhist, Jain and Sikh from their legitimate right to claim their respective place of worships, which are destroyed by the Invaders.

9:- Article 21 established that Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law, hence the question is arising here that whether it is permissible under the provisions of this Article to make a discrimination and establish a procedure of law in order to deprive the other communities from their legitimate rights in order to appease a single community. The answer shall always be in negative as no any law can be established by the central as well as State government in order to make the discrimination amongst the communities and destroy the structure of social and secular structure of our constitution.

10:- Article 25 of the constitution of India established the Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion;

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law;

(a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

If the communities like Hindu, Budhdhist, Jain and Sikhs shall be restrained to enjoy their Freedom of conscience and free profession, practice and propagation of religion, than what shall be the use of Article 25.

[3] The 9 Judge bench, in this case ruled that Secularism is the basic feature of the constitution of India. It also observed that religion and politics cannot be mixed together. If the state follows unsecular policies or courses of action then it acts contrary to the constitutional mandate. In a state, all are equal and should be treated equally. Religion has no place in the matters of state. Freedom of religion as a fundamental right is guaranteed to all persons in India but from the point of view of the State, religion, faith and belief are immaterial.

[4] The constitution of India has also established that Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(b) To manage its own affairs in matters of religion;

(c) To own and acquire movable and immovable property; and

(d) To administer such property in accordance with law.

[5]The Bombay High Court held that Articles 25 and Article 26 not only prevents doctrines or beliefs of religion but also the acts done in pursuance of religion. It thus guarantees ceremonies, modes of worship, rituals, observances, etc. which are an integral part of religion. What is the essential or integral part of a religion has to be determined in the light of the doctrines and practices that are regarded by the community as a part of their religion and also must be included in them. 

[6]The Supreme Court in ruled that there is no doubt that religion finds its basis in the system of doctrines regarded by those who profess that religion, but it will not be correct to say religion is nothing but a doctrine or belief. 

[7]In the case of the court held that Religion need not be theistic. It is not merely an opinion, doctrine or belief but has an outward expression in the act as well. 

[8]The facts of this case were: The serial ‘Tamas’ was based upon a book that already screened four episodes that portray the communal violence between Hindu-Muslim and Sikh-Muslim and the tension, killing and looting that took place. A writ petition was filed under Article 32 of the Constitution for the issuance of the writ of prohibition or other appropriate writ or order restraining the further screening of the serial ‘Tamas’ and enforcing the fundamental rights of the petitioner under Article 21 and Article 25 and to declare the screening of Tamas as violative of Section 5B of the Cinematograph Act, 1952.The Court while dismissing the petition held that there is no violation of Article 21 and 25 and the respondent has not acted improperly. The author tries to bring attention to the past history of our country and to emphasize the wish of the people to live in harmony and rise above religious barriers. It further held that when the serial is viewed in its entirety it creates an impression of peace and co-existence and that the people are not likely to be carried away by the violence shown in it. 

Note that one PIL has already been filed in the year 2020 by ‘Vishwa Bhadra Pujari Purohit Mahasangh’ by seeking directions from the apex court to declare Section 4 of the 1991 Act as “ultra vires”, i.e., beyond legal power or authority and unconstitutional.

Please further Note that The  Imam of Teele Wali Masjid in Lucknow,  Maulana Fazlul Mannan, has filed an application for intervention in the said Writ Petition moved before the Supreme Court, challenging sections of the Places of Worship (Special Provisions) Act, 1991.

CONCLUSION:-

[9]The State of Bombay passed the Bombay Prevention of Excommunication Act, 1949. Section 3 of this Act prevented the excommunication of the members of any community. The petitioner (religious head of the Dawoodi-Bohra Community) challenged the Act on the ground of violation of their fundamental rights guaranteed under Article 25 and 26. The Court observed that the power of Excommunication by the head formed the essential affairs of the community and the Act clearly violated the fundamental right under Article 25(1) of the Constitution. The Supreme Court held that the Act was violative of Articles 25 and 26 and was therefore void.

In the aforesaid premises, it is crystal clear that No State and/or Central Government ( under the shelter of curbing the communal tension and in the name of religion ) can establish any act that is opposed to the public policy or creating any kind of disturbances or intolerance among the people as well as communities of India. This Act is not only depriving the members of Hindu, SIKH, Jain and Budhdhist communities from their legitimate rights to claim their respective places of worship which have been brutally and wildly destroyed by the illiterate Invaders but also violating the roots of the Secular structure of the Constitution Hence “Places of Worship (Special Provisions) Act, 1991 “, must not be in existence and must be removed forthwith.

Nagendra Pratap Singh (Advocate)

aryan_innag@yahoo.co.in

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[1] M Ismail Faruqi v. Union of India AIR 1995 SC 605 A

[2] M Siddiq (D) Thr. Lrs v. Mahant Suresh Das Civil Appeal Nos 10866-10867 of 2010

[3] S R Bommai V/s. Union Of India 1994 SC 1918

[4] Article 26 of the Constitution of India.

[5] Hasanali vs Mansoorali (1948) 50 BOMLR 389

[6] Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 AIR 282, 1954 SCR 1005

[7] SP Mittal v. Union of India, 1983 AIR, 1 1983 SCR (1) 729

[8] Ramesh v. Union of India (1988) 1 SCC 668

[9] Saifuddin Saheb V. State of Bombay AIR 1962 SC 853