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The Supreme Court on Friday said 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, can be referred to a five-judge constitution bench for adjudication.
A bench comprising Chief Justice Uday Umesh Lalit and Justices S Ravindra Bhat and P S Narasimha also asked the Centre, represented by Solicitor General Tushar Mehta, to file a reply to the PILs questioning the validity of the 1991 law.
While Bharatiya Janata Party leader and 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, petitioner Ashwini Upadhyay claimed that the entire statute was unconstitutional and hence no question of reading down arises.
On the other Jamiat Ulama-i-Hind, represented by advocate Ejaz Maqbool, referred to the five-judge Constitution bench judgement in the Ram Janmabhoomi-Babri masjid title case and said that the 1991 law has been referred to there and it cannot be set aside now.
However, senior advocate Rakesh Dwivedi, appearing for Upadhyay, said “The observations made in that judgement is obiter (said in passing reference) and it does not lay down any legal proposition."
Agreeing to submissions of some lawyers, the CJI said, “this batch of matters can be referred to a five-judge constitution bench. But even this can be done by the three judges bench on the judicial side”.
“A bench of two judges of this court issued a notice in the matter on March 12, 2021. Thereafter, this petition has been coming up on a few occasions. However, the Union of India has not put in any response. The Solicitor General, Tushar Mehta has been granted two weeks to file an affidavit. Rejoinder to be filed a week thereafter, if any.
“There are a host of applications seeking impleadment. We allow all these applications and give liberty to concerned applicants to intervene. The intervenors are to file written submissions which shouldn't exceed five pages,” the bench said in its order and posted it for hearing on October 11 before a bench of three judges.
Allowing all the intervention applications, the bench said the copies of these pleas be digitally shared with all the lawyers and asked them to complete the pleadings by then.
The top court, on March 12, last year, had sought the Centre's response to one of the pleas filed by lawyer Ashwini Upadhyay challenging the validity of certain provisions of the law which provide maintaining the status quo concerning 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 at Ayodhya in Uttar Pradesh.
The PIL claims that the provisions of the law "not only offend Articles 14 (equality), 15 (prohibits discrimination of Indians on basis of religion, race, caste, sex or place of birth), 21 (protection of life and personal liberty), 25 (freedom of conscience and free profession, practice and propagation of religion), 26 (freedom to manage religious affairs) and 29 (protection of interests of minorities) but also violate the principles of secularism, which is an integral part of the Preamble and the basic structure of the Constitution".
The PIL contends that the Centre has barred the remedies against illegal encroachment on places of worship and pilgrimage of Hindus, Jains, Buddhists, and Sikhs, who cannot file a suit or approach a high court.