New Delhi: The Supreme Court on Monday asked the Union government to file its reply to a batch of PILs challenging the validity of certain provisions of a 1991 law which prohibit filing of a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on August 15, 1947.
A bench of Chief Justice DY Chandrachud and Justice PS Narasimha gave the Centre time till the end of February to submit its response to the petitions against some provisions of the Places of Worship (Special Provisions) Act, 1991.
Senior advocate Kapil Sibal, appearing for some of the intervenors, raised the preliminary objection to the challenge of a statute through PILs, calling it a serious issue.
”I have certain points to make. First, that this challenge has been made through PILs…I can understand if there is a dispute concerning a structure. This is an Act in regard to which certain observations have been made in Ram Janmabhoomi case (Ayodhya verdict). ”My preliminary objection is that these PILs cannot be entertained unless they relate to a particular structure. There cannot be a public interest qua judgement of a court taking a certain view,” Sibal said. He added that before the court goes into final hearing of the matter, these preliminary issues needed to be dealt with.
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The bench noted the objection raised by Sibal and said it will take that into account during the final hearing by the end of February.
Senior advocate Rakesh Dwivedi, appearing for petitioner Ashwini Upadhyay, said the challenge has been made to the legislation and not against any observations made by the court in the judgement.
Advocate Vrinda Grover, appearing for one of the parties, said it is not clear what the Union government has to say on the issue as it has not submitted its stand in an affidavit. ”While these petitions are pending, there are disputes such as the Gyanvapi mosque (dispute in Varanasi), Idgah mosque (Mathura) which are in direct breach of the statute. Litigations of all manner have been taking place, while the Centre is yet to place on record its stand on the statute,” she said.
The top court was hearing the pleas, including the one filed by Upadhyay, who has prayed that sections 2, 3, 4 of the Places of Worship (Special Provisions) Act, 1991 be set aside on grounds including that these provisions take away the right of judicial remedy to reclaim a place of worship of any person or a religious group.
As many as six petitions, including those filed by former Rajya Sabha MP Subramanian Swamy have been filed against the provisions of the law.
On November 14 last year, Solicitor General Tushar Mehtra, appearing for the Centre, had said a comprehensive affidavit will be filed by the Union government dealing with various facets of the case and sought some more time to ensure that the document is filed after due deliberation at various levels of the government.
While hearing the matter on September 9 last year, the apex court had said the pleas challenging the validity of certain provisions of the 1991 law can be referred to a five-judge Constitution bench for adjudication and asked the Centre to file a reply.
While BJP leader and former Rajya Sabha MP Subramanian Swamy wanted the apex court to ”read down” certain provisions to enable Hindus to stake claim over the Gyanvapi Mosque in Varanasi and Shahi Idgah Mosque in Mathura, Upadhyay claimed the entire statute was unconstitutional and no question of reading down arises.
The doctrine of reading down a law is generally used to save a statute from being struck down on account of its unconstitutionality.
On the other hand, Jamiat Ulama-i-Hind, represented by advocate Ejaz Maqbool, had referred to the five-judge Constitution bench judgement in the Ram Janmabhoomi-Babri Masjid title case and said the Places of Worship (Special Provisions) Act, 1991 has been referred to there and it cannot be set aside now.
The top court had on March 12 last year sought the Centre’s response to the plea filed by Upadhyay challenging the validity of certain provisions of the law which provide for maintaining status quo on the ownership and character of religious places as on August 15, 1947.
The petition alleged that the 1991 law creates an ”arbitrary and irrational retrospective cut-off date” of August 15, 1947 for maintaining the character of the places of worship or pilgrimage against encroachment done by ”fundamentalist-barbaric invaders and law-breakers”.
The 1991 law prohibits conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on August 15, 1947 and for matters connected therewith or incidental thereto.
The law had made only one exception — on the dispute pertaining to the Ram Janmabhoomi-Babri masjid in Ayodhya.