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When a bench headed by Chief Justice U U Lalit was told the Centre has not yet filed its response to the petitions, Solicitor General Tushar Mehta, appearing for the government, said it is under consideration as to what to respond to and whether to respond.
The bench, also comprising Justices Ajay Rastogi and S R Bhat, asked Mehta how much time was required to submit the affidavit.
”Two weeks, that is what my instruction is,” Mehta said, adding some time was needed considering the sensitivity of the matter.
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The top court was hearing the pleas, including the one filed by advocate Ashwini Upadhyay who has said 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.
During the hearing, senior advocate Rakesh Dwivedi, appearing for Upadhyay, told the bench his plea challenges the validity of certain provisions of the Act and that he has circulated a set of questions of law which requires consideration in this case.
”Mr Solicitor, what is your personal sort of submission on this? Whether the matter is covered by the judgement in Ayodhya matter or not covered by that,” the court asked Mehta during the hearing.
The solicitor general responded, saying, ”May not be covered. Because that was in a different context. I do not know which side it would help, but since your lordships asked me my personal view, it cannot be coloured by this side or that side.” The bench then asked him to put in the response of the Centre.
The apex court said the counsel appearing in the matter may give questions which according to them would require consideration by the court.
”After such questions are received by all counsel, we request the counsel to file their written submissions, not exceeding three pages, indicating the time that may be required for the counsel to advance their submissions,” it said, and listed the matter for November 14.
While hearing the matter on September 9, 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 mosques at Gyanvapi in Varanasi and Mathura respectively, Upadhyay claimed the entire statute was unconstitutional and hence 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 1991 law 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 the status quo concerning the ownership and the character of religious places as prevailing 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 provision is an Act to prohibit 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.