The Supreme Court has constituted a special bench to hear a batch of PILs challenging the validity of certain provisions of a 1991 law that prohibits filing a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on August 15, 1947.
A three-judge bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan is likely to hear the matter on December 12 at 3:30 pm.
The top court is seized of the pleas, including one filed by Ashwini Upadhyay who has prayed that sections 2, 3 and 4 of the Places of Worship (Special Provisions) Act, 1991 be set aside. Among the various reasons submitted was the contention that these provisions take away the right of judicial remedy to reclaim a place of worship of any person or a religious group.
The matter will be heard in the backdrop of several suits filed in various courts, including related to Gyanvapi Mosque in Varanasi, Shahi Idgah Mosque in Mathura and Shahi Jama Masjid in Sambhal, claiming that these were built after destroying ancient temples and seeking permission to offer Hindu prayers there. The Muslim side in most of these cases have cited the 1991 law to argue that such suits are not maintainable.
As many as six petitions, including those filed by former Rajya Sabha MP Subramanian Swamy, have been filed against the provisions of the 1991 law.
While former Union minister 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 had cited the five-judge Constitution bench judgement in the Ram Janmabhoomi-Babri Masjid title case, noting the reference to the Places of Worship (Special Provisions) Act, 1991, to argue that the law cannot be set aside now.
The top court had on March 12, 2022, sought the Centre's response to the plea filed by Upadhyay challenging the validity of certain provisions of the law.
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 provides 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.
