Supreme Court Asks Centre To File Its Response To Pleas Challenging Places Of Worship Act By October 31

The Supreme Court bench, comprising Chief Justice U.U. Lalit, Justice Ravindra Bhat and Justice Ajay Rastogi listed a batch of petitions challenging the Constitutional validity of provisions of the Places of Worship (Special Provisions) Act 1991 on 14th November 2022. The court also directed the Union of India to file its response by 31st October 2022. The petitions have been filed against the Act inasmuch as it bars remedies against illegal encroachment on the places of worship and pilgrimages prior to August 15, 1947. 

In its last hearing, the court had directed the Union of India to file a response in two weeks. However, in today's proceedings, Advocate Vrinda Grover, appearing for Jamiat Ulema-i-Hind supporting the Act, told the bench that no such response had yet been filed. The Solicitor General of India, Tushar Mehta, appearing for the centre, submitted that the reply was still under consideration and another two weeks were required for the same. CJI Lalit stated that when the validity of a legislation was challenged, the stand of the Central Government was relevant.

Senior Advocate Rakesh Dwivedi, appearing for the petitioner, submitted that the law was passed without debates. He said that certain additional questions have been framed, which were not considered by the Supreme Court in the Ayodhya judgment which upheld the Places of Worship Act. Dr. Subramanian Swamy, appearing as part-in-person, submitted that the Centre should be asked to respond.

The CJI asked the Solicitor General what was his personal view regarding the impact of the Ayodhya judgment on the challenge.

"Mr. SG, what is your personal view? Was the legislation covered in Ayodhya judgement?", CJI asked.

SG replied, "it may not be covered by that".

Ultimately, the bench adjourned the matter asking the Union of India to file a response by 31st October 2022. 

CJI UU Lalit narrated the order which reads as follows–

"Mr. Rakesh Dwivedi, appearing for petitioner, has formulated questions which in his view would arise and would be required to be considered by this court. On the last occasion, SG had prayed for some time to place his submissions on record by way of affidavit in response. He prays for further time of two weeks to do the needful. Let the affidavit in that behalf be filed before 31st oct 2022. Ms. Vrinda Grover submits that after the response filed by the SG she would also respond and may suggest any additional questions which may arise in the matter. Ms. Grover and any other counsel who wishes to place additional questions may inform Mr. Kanu Agarawal within 7 days. We have requested Mr. Agarwal to collate the questions so that the attention of the court can be focused on these questions. He shall share copies of compilation in digitised mode with all counsels. All counsels are requested to submit their submissions in writing. Counsels' submissions to be in 3 pages suggesting time required for arguments. List matter on 14th November 2022. Mr Sinha and Mr Suresh have suggested additional questions which may also be forwarded to Mr. Agarwal. Issue formal notice in all the matters."

Questions Raised For Consideration by the Petitions

1. Whether the parliament was legislatively competent to enact The Places of Worship (Special Provision) Act 1991 as the Act deals with subject matters mentioned in the State List (List-2) of 7th schedule of the Constitution which are all in the Exclusive domain of the State Legislatures?

2. Whether the Act is violative of Article 14 in as much as it discriminates in a hostile manner by restricting the operation of the Act to all States other than the State of J&K?

3. Whether the bar of conversion of places of worship imposed by Section-3 read with Section 2(b) is violative of Articles 14, 21, 25, 26 and 29(1) of the Constitution in as much as it assumes, contrary to settled law relating to dedication of temple and temple property to the Idol, which never dies, that seeking reclamation or restoration of the temples destroyed by Muslim invaders , specially by Aurangzeb, would amount to seeking conversion of the place of worship and thereby putting an imprimatur on the destruction of the Hindu temples and the building of structures on the temple land for offering prayers by another community? Whether this would amount to depriving the temples and the Idols of their property without any public purpose and would violate Article-300 A of the Constitution?

4. Whether the Cut-off date 15-8-1947 fixed by Section 4(1 ) of the Act is discriminatory and manifestly arbitrary and violative of Article 14, 21, 25, 26, 29(1) of the Constitution of India as for approximately 4 centuries prior to the said date the people of India were not free and subjects of initially the Mughal invaders and thereafter of British imperialists and were not in a position to seek retrieval and reconstruction?

5. Whether the second part of Section 4(2) which bars suits, appeals and other legal proceedings with respect to reclamation of place of worship is violative of Article 14, 21, 25 ,26, 29(2) in as much as it denies access to the Court of justice for peaceful resolution of disputes and redressal of wrongs committed by Muslim invaders on religious grounds by use of force?

6. Whether Section 4 (2) of the Act is violative of Articles 14, 21, 25, 26, and 29(2) of the Constitution in as much as it mandates the abatement of pending disputes in relation to place of worships in the Courts and thereby legislatively perpetuates the destructions of prime temples and the building of structures on the temple land by use of temple materials by the Muslim invaders by use of force resulting in adversely impacting the fundamental rights of Hindus to religion and worship?

7. Whether the second part of Section-4 (2) would envelop proceedings under Article 226 and Article 32, which is a fundamental right under the Constitution?

8. Whether the proviso to Section 4( 2 ) which allows suits, appeals and legal proceedings to continue where conversion has taken place in the religious character of place of worship after 15-8-47 despite its potentiality to disturb public order, and breach communal harmony whilst shutting out litigations relating to conversions which took place in the past as a result of invaders atrocities amounts to hostile discrimination as between two classes of litigation, and this has no relation to public order and communal harmony? Whether Section- 5 of the Act makes invidious discriminations by treating Ram Janam Bhumi dispute as a "Class by itself" while excluding from the exemption prime temples like Kashi Vishwanath (One of the 12 Jyotirlingas ) and Krishna Janm Sthan which are equally, if not more, important temples whose destruction by invaders is more soundly evidenced and recorded in history?

9. Whether the abatement of pending suits and other legal proceedings would result in a decision of cases by legislative fiat and without following any procedure of adjudication and would be contrary to basic feature of Rule of Law and Judicial Review? Whether the right to worship, profess, practice and propagate religion and manage religious affairs guaranteed by Articles 25(1) and 26 of the Constitution and the right to conserve one's own culture guaranteed by Article 25 (1) would include the right to reclaim and reconstruct temples (which are a continuity) destroyed by Muslim invaders?

10. Whether Suits seeking restoration and reconstruction of or for worship in the temples destroyed and demolished by the Mughal invaders would amount to "conversion" within the meaning of the term as defined in the Act?

Case title: ASHWINI KUMAR UPADHYAY Versus UNION OF INDIA AND ORS. W.P.(C) No. 1246/2020 and connected matters

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