Background and Issue

Ashwini Kumar Upadhyay is an advocate and politician. He has filed a petition challenging sections 2, 3 and 4 of the Places of Worship Act, 1991 (‘the Act’). The petitioner also finds issue with the declaration from the Centre when the act came into force.

The Centre declared that the ‘character’ of places of worship would be as it was on the date of independence, 15th August 1947. Conversion of these places of worship is prohibited.

The petitioner states that this prohibition has barred remedies for Hindus, Sikhs, Jains and Buddhists against illegal encroachment. It is argued that these sections are contrary to Articles 14, 15, 21, 25, 26 and 29 of the Constitution of India, 1950. Further the petitioner argues that the act is against the principle of secularism under the Preamble and the basic structure of the constitution. The petitioner emphasised on the practice of idol worship under Hindu law, which he states to mean that the representation of the supreme being can never be divested from its property.

 

What does the Petitioner Seek?

The petitioner prayed for the court to –

  1. Declare Sections 2, 3, and 4 of the Places of Worship (Special Provisions) Act, 1991 as unconstitutional.

 

Grounds

The petitioner presents certain ‘questions of law’ for the Supreme Court to decide upon.

 

The Act Cannot Bar Judicial Review

Sections 2, 3 and 4 bars any dispute arising under the Act to be taken before the courts. The petitioner argues that the Centre cannot take away the powers of the court conferred under Articles 32 and 226. Referring to cases such as I.R. Coelho v. State of Tamil Nadu (2007) and L. Chandra Kumar v. Union of India (1997), the petitioner argues that the right to judicial remedy conferred by these Articles is a part of the basic structure of the constitution and cannot be violated by legislative action.

 

The petitioner argues that the power conferred by Article 32 includes an obligation for the Supreme Court to protect fundamental rights. The courts power is not constrained to issuing specific writs and remedies, but is argued to be expansive enough to issue any appropriate directions for the enforcement of fundamental rights.

 

The petitioner also seeks to clarify that the expression “in the nature of” in Article 32 allows for enlarged Supreme Court jurisdiction. Therefore, an application where the Supreme Court is the court of first instance, with adequate alternate remedy available, with an inquiry into facts, a lack of prayer for proper writ or direction or even a lack of a specific fundamental right that has been infringed, cannot be refused by the Supreme Court.

 

Centre Lacks Legislative Competence

The petitioner argues that the Centre has barred any remedy against illegal encroachment upon places of worship. With specific regard to Hindu law the petition states that Hindus have the fundamental right under Article 25 and 26 to practice and propagate their religion including idol worship. As idols cannot be divested from their property, the petition states that Hindus have the fundamental right to worship the deity at the property and utilize the property for religious purposes.

 

The petitioner refers to the case of Mahant Ram Saroop Dasji v. S.P. Sahi where it was held  “Even if the idol gets broken or is lost or stolen, another image may be consecrated and it cannot be said that the original object has ceased to exist.”

 

The petitioner notes that the Centre also lacks the legislative power to make a law such as the Act. Places of worship and pilgrimage are part of the State list and hence, the petitioner argues they cannot be legislated upon by the Centre.

 

 

Fundamental Rights of Hindus, Jains, Buddhists and Sikhs Violated

The Petitioner argues that the Centre has transgressed its legislative power and in doing so, has “snubbed the voices” of Hindus, Jains, Buddhists and Sikhs against the illegal acts of past invaders. The petition makes sole specific reference to the invasion of Mohammed Gori in 1192 and how religious places from 1192 must be restored to their same glory after being destroyed.

 

This alleged infringement and religious censorship is argued to affect their right to religion and thus it is offensive of the fundamental rights guaranteed under Articles 14, 15, 21, 25 and 26 (the petition does not substantiate upon the fundamental rights violations.) As this law infringes fundamental rights, it should be held void as per Articles 13(1) and 13(2) of the Indian Constitution.