In a long-awaited succour, the Supreme Court on Thursday restrained all courts across the country from passing any effective interim or final order, including that of surveys, in pending suits staking claim over existing religious structures.
Asking the Central government to file its response to the petitions before the court, a bench comprising Chief Justice Sanjiv Khanna, Justice Sanjay Kumar and Justice K.V. Viswanathan also ordered that no fresh suits can be registered making claims over other religious places while the court is hearing cross-petitions challenging the constitutionality of the Section 3 and 4 if the Places of Worship (Special Provisions) Act, 1991 and others seeking “effective and proper” enforcement of 1991 law.
“As the matter is sub-judice before this court, we deem it fit to direct that while suits may be filed, no suits would be registered and proceedings undertaken till further orders of this court. In the pending suits, courts would not pass any effective interim order or final orders, including orders of survey,” the court said in its order.
The Court gave the Central government four weeks’ time to file its response to the petitions challenging the certain provisions of the 1991 law.
The Places of Worship (Special Provision) Act, 1991, prohibits the filing of a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on August 15, 1947.
The bench was told that at present 18 suits are pending in the country against 10 mosques or shrines that includes Gyanvapi mosque in Varanasi, Krishna Janmabhoomi in Mathura, Ajmer Sharif Dargah and the Sambhal Mosque.
Stating that the hearing will be focused on the questions framed in the matter on October 10, 2022, the court kept it open to the parties to suggest any other question, for its consideration, that they like to be adjudicated.
The petitioners questioning the constitutionality of the Section 3, and 4 of the Places of Worship (Special Provision) Act, 1991, have stated that the 1991 law is void and unconstitutional as it has taken away the right to approach the Court and deprives Hindus, Jains, Buddhists, Sikhs to take back their places of worship and pilgrimage connected with their cultural heritage (Article 29) and it also restricts them from restoring the possession of their places of worship.
The 1991 law, the petitions challenging it, say violates the principles of secularism and rule of law, which is an integral part of the Preamble and basic structure of the Constitution.
“It is respectfully submitted that the Central Government by making impugned provision (Places of Worship Act 1991) in the year of 1991 has created arbitrary irrational retrospective cutoff date, declared that character of places of worship and pilgrimage shall be maintained as it was on August 15, 1947 and no suit or proceeding shall lie in the court in respect of the dispute against encroachment done by barbaric fundamentalist invaders and such proceeding shall stand abated,” says one of the petitions challenging the 1991 law.
Section 3 of the Act bars the conversion of places of worship. It states, “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 bars filing of any suit or initiating any other legal proceeding for a conversion of the religious character of any place of worship, as existing on August 15, 1947.
On the other hand, the Jamiat Ulama-I-Hind has sought an “effective and proper” enforcement of the Places of Worship (Special Provisions) Act, 1991 and the law laid down in the 2019, unanimous judgment by a five-judge constitution bench in Ayodhya’s Ram Janmabhoomi mandir case.
The Jamiat Ulama-I-Hind has stated that in “blatant violation” of the 1991 law, the Muslim religious places are being made the subject matter of frivolous controversies and suits, which are patently barred under the 1991 Places of Worship Act.
The Muslim body has said, “However, despite the existence of a statutory bar, such proceedings are being permitted to proceed, often with interim orders altering the status quo which has been maintained for ages in such Muslim places of worship.”
The petition by the Jamiat Ulama-I-Hind says that the 2019 Ayodhya judgment has categorically held that the “law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course which history has taken and that the courts of today cannot take cognizance of historical rights and wrongs unless it is shown that their legal consequences are enforceable in the present.”
In view of 2019 Ayodhya judgment, the Jamiat Ulama-I-Hind petition says that these law “suits which rest on the basis that Muslim Invaders allegedly converted the Hindu Places of Worship, cannot be entertained in view of the law laid down by the 5 Judges Constitution Bench” of the Supreme Court.
The petitioners challenging the constitutionality of the Places of Worship Act include, among others, the daughter of the Kashi Royal Family, Maharaja Kumari Krishna Priya, BJP leader Subramanian Swamy, Ashwini Kumar Upadhyay, former Member of Parliament Chintamani Malviya, a retired army officer Anil Kabotra, advocates Chandra Shekhar, Varanasi resident Rudra Vikram Singh, a religious leader Swami Jeetendranand Saraswati, a resident of Mathura and a religious guru Devkinandan Thakur Ji.
In an earlier hearing, Subramanian Swamy had told the bench that he was not seeking setting aside of the 1991 law but seeking only two more temples be excluded from its ambit of the 1991 law and then it can remain as it is.