The Supreme Court has constituted a special bench to hear a batch of petitions challenging the Places of Worship (Special Provisions) Act, 1991 amid concerns raised over multiple suits being filed across the country by Hindu parties seeking survey of ancient mosques to verify the presence of ancient temple ruins lying underneath.
The special bench will be headed by Chief Justice of India (CJI) Sanjiv Khanna and will comprise two other judges – justices PV Sanjay Kumar and KV Viswanathan. The matter will be taken up on December 12 at 3.30 pm.
There are five petitions, the earliest being of 2020, challenging the 1991 Act which was introduced on July 11, 1991, by the then Congress government to maintain the “religious character” of places of worship as on August 15, 1947. The law also imposes a bar on the institution of fresh suits or legal proceedings. However, the Ram Janmabhoomi-Babri Masjid title suit dispute was exempted as the litigation in this regard was pending as on the date of Independence.
While the Union government is a party in all these petitions, it is yet to file its response. Solicitor general Tushar Mehta appeared in these matters in July 2023 and informed the court about the Centre’s willingness to file a response. Time was granted till October 31, 2023, to file a response but the same is yet to be filed.
Petitions
The lead petition in the batch of cases is filed by Bharatiya Janata Party (BJP) leader and lawyer Ashwini Kumar Upadhyay who alleges that the 1991 law violated Article 25 (right to practice and propagate religion) and Article 26 (right to manage religious affairs) of the Constitution, besides being discriminatory by barring religious communities from approaching courts to restore their places of worship. He even questioned the Centre’s power to enact such legislation.
The other petitioners include Vishwa Bhadra Pujari Purohit Mahasangh and BJP leader and former Union minister Subramanian Swamy. The former through advocate Vishnu Shankar Jain has questioned the 1991 law on the ground that it denies judicial review, which is part of the basic structure of the Constitution, by preventing citizens to file lawsuits to reclaim land that once belonged to temples, before being destroyed by Muslim rulers. Swamy, on the other hand, urged the court to extend the exemption provided for the Ram Janmabhoomi-Babri Masjid land to Kashi Vishwanath and Mathura temples.
An application has also been filed by Kumari Krishna Priya of the Kashi royal family, claiming the 1991 law is discriminatory as it exempts Ram Janmabhoomi but not the Kashi temple. The Idgah in Mathura is next to the Sri Krishna Janmabhoomi Sthal, where deity Krishna is believed to have been born while the suit in the Gyanvapi case claims the mosque to be part of the Kashi Vishwanath temple.
The Muslim side has also approached the top court to ensure enforcement of the 1991 law and is part of the present batch of cases to be heard on Tuesday. This includes a petition by Jamiat Ulama-i-Hind and an application moved by the All India Muslim Personal Law Board (AIMPLB). Last month, the Gyanvapi mosque committee moved an application to intervene in the proceeding. Its application is yet to come up for hearing.
While a two-judge bench had issued notice on Upadhyay’s petition in March 2021, it was on September 9, 2022, the top court passed an order to list these petitions before a three-judge bench. The order said, “Considering the issue involved in these matters, in our view, the matters are eminently suitable to be heard by a bench of three judges of this court.”
Jamiat’s petition filed by advocate Ejaz Maqbool said, “Muslim places of worship are being made the subject matter of frivolous controversies and suits, which are patently barred under the 1991 Act.”
While deciding the Ayodhya title suit in November 2019, a five-judge bench of the top court had said, “The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is, hence, a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution.”
The Muslim side has relied on these portions of the judgment to seek rejection of suits pending against the Shahi Idgah mosque in Mathura and Gyanvapi mosque in Varanasi. Of late, suits have also been entertained by trial courts against the Bhojshala mosque in Madhya Pradesh, Shahi Jama Masjid in Sambhal (Uttar Pradesh) and more recently the world-renowned Ajmer Dargah.
The AIMPLB on November 28 issued a statement appealing to the Supreme Court to suo motu take up the matter and direct lower courts from entertaining such suits. The AIMPLB national spokesperson SQR Ilyas said, “Such claims (against mosques) are a blatant mockery of the law and the Constitution, especially in the light of the existence of the Places of Worship Act, 1991…The intention (of the law) was clear to prevent any further targeting of mosques or other religious places following the Babri Masjid case.”
On December 6, former Supreme Court judge, justice (retd) Rohington F Nariman had commented on the mushrooming of such cases against Muslim mosques and dargah as being a potential threat to communal harmony. In his memorial lecture in honour of former CJI AM Ahmadi on the topic ‘Secularism and the Indian Constitution’, the former judge referred to the multiple suits pending in the country as “hydra heads popping all over the country” and said that the five pages of the Constitution Bench in the Ayodhya title suit case dealing with the 1991 Act is sufficient to dismiss these suits.
