SC to list final hearing on pleas challenging Places of Worship Act

The Supreme Court on Wednesday agreed to list for final hearing the pleas challenging the validity of certain provisions of a 1991 law which prohibit 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. A bench comprising Chief Justice Surya Kant and justices Joymalya Bagchi and Vipul M Pancholi was urged by senior advocate Rakesh Dwivedi, appearing for PIL petitioner Ashwini Upadhyay, that the final hearing be accorded as the questions were framed way back on October 12, 2022.

The senior lawyer said the Centre, which was asked to file its response to the plea by October 31, 2022, is yet to submit its response. “We will fix a date for the final hearing,” the CJI said, adding that there are two nine-judge bench matters already fixed in March and April. “Let us see. We will finalise the hearing dates after the 9- judges bench case,” the CJI said.

The top court, meanwhile, refused to consider a submission that a civil court at Rajasthan be restrained from passing effective orders in the Ajmer dargah case. “If they pass such orders, we will see what’s to be done. We have passed an order and that is binding on all and one. If someone passes an order in defiance of that, then we have to examine that and see... Consequences will follow,” the CJI said.

The bench, however, said that if notices are issued and replies are sought, then there was no need to interfere with procedural orders. On December 12, 2024, the top court restrained till further directions the courts in the country from entertaining fresh lawsuits and passing any effective interim or final orders in pending ones seeking to reclaim religious places, especially mosques and dargahs.

On October 12, 2022, the top court asked the Centre to furnish by October 31 its affidavit in response to petitions challenging the validity of certain provisions of the Places of Worship (Special Provisions) Act, 1991.

It 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.

While former Rajya Sabha member Subramanian Swamy wanted the apex court to “read down” certain provisions to enable Hindus to stake a 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, 2021, 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.