Challenge To Places Of Worship Act Day# 1: SC Asks Union To Take A Stand On The Act By December 12thConstitutionality of the Places of Worship Act
Judges: D.Y. Chandrachud CJI, J.B. Pardiwala J
On November 14th, a Supreme Court Bench led by CJI DY Chandrachud granted the Union government time till December 12th to take a stand on the challenge to the Places of Worship (Special Provisions) Act,1991. The Bench granted time after Solicitor General Tushar Mehta informed the Court that he has to hold consultations with higher level government officers to clarify the Union’s stance.
Lawyer and politician Ashwini Kumar Upadhyay filed a petition challenging the Act in 2020. Section 3 of the Act criminalises ‘conversion’ of a place of worship for one religion or sect into another. Section 4 declares that the character of a place of worship will be determined as it was on August 15th 1947. It also bars Courts from determining whether any place of worship has been converted after August 15th 1947. Section 5 of the Act excludes its application to the site known as ‘Ram Janma Bhumi’ or ‘Babri Masjid’.
The petition asks the Court to strike down sections 2, 3 and 4 of the Act as unconstitutional on the ground that it bars judicial review which is a basic structure of the Constitution and cannot be taken away. The petition alleged that the Act violates the principle of secularism which is a basic feature of the Constitution. The petition implies the Act shows preference to one religious community.
Mr. Upadhyay, in his petition has contended that the choice of date adversely impacts Hindus, Sikhs, Jains and Buddhists.He argued that Muslims and the British had destroyed temples from 1192 onwards. By freezing the date in 1947, the Act does not allow these communities to restore their places of worship. This violates Articles 14 and 15 which guarantee equality and Article 21, the right to life. The petition also says this violates the right to religious freedoms under Articles 25, 26 and 29.
The SG, on seeking time to file the counter, asked the Court to list the case in the first week of December. The Bench accepted the request and adjourned the case for hearing in January 2023.The Court also directed the registry to post the matter before a three judge Bench going forward.
Former Member of Rajya Sabha, Subramanian Swamy, who has also filed a petition in a related issue, informed the Court that he has not asked for setting aside of the Act in his petition. He said that his petition only seeks to keep two disputed sites out of the purview of the Places of Worship (Special Provisions) Act, 1991.
The case is likely to come up for hearing in January, 2023.