SC will take up Places of Worship pleas on December 12

Chief Justice of India (CJI) Sanjiv Khanna has formed a three-judge special bench to address a series of petitions challenging the Places of Worship (Special Provisions) Act, 1991, a law enacted to preserve the religious character of all places of worship as they stood on August 15, 1947.

The bench, headed by CJI Khanna and including justices PV Sanjay Kumar and KV Viswanathan, will hear the consolidated cases at 3.30 pm on December 12.

The formation of this bench comes at a critical time, with Hindu groups initiating legal suits across the country to survey mosques and determine whether temple structures lie beneath them.

Despite the significance of the issue, the matter has seen little progress in the Supreme Court over the last two years, even as such disputes have escalated in district courts and high courts, leading to a proliferation of conflicting and politically sensitive orders.

The 1991 Act was enacted by the then Congress-led government to preserve the religious character of all places of worship as it stood on August 15, 1947. It prohibits the filing of fresh suits or legal proceedings to alter the religious status of such sites and makes it punishable to attempt to change its character.

However, the Act exempted the contentious Ram Janmabhoomi-Babri Masjid site in Ayodhya, where legal proceedings were already on.

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Since its enactment, the Act remained largely unchallenged for several years, facing no substantial opposition until a deluge of petitions emerged following the Supreme Court’s 2019 Ayodhya judgment, which ruled in favour of the Hindu side and reignited demands to reclaim other religious sites, sparking arguments over the legislation’s constitutionality.

Five such petitions contesting the validity of the Act will be taken up by the special bench on December 12. In March 2021, the court had admitted the challenge to the law and sought the Centre’s stand but despite the growing number of petitions, the Union government has yet to clarify its position on the Act.

In July 2023, Solicitor General Tushar Mehta informed the Supreme Court that the Centre was prepared to file its response, and the court granted an extension until October 31, 2023.

However, no affidavit has been submitted, leaving the government’s stance uncertain. If the Centre opts to defend the law as it is, it will have to justify the rationale behind the cut-off date and stop the reclamation of religious places allegedly destroyed by Muslim invaders, among others, raised by the petitioners.

During a hearing in July 2023, the court declined to impose a blanket stay on lower courts from hearing-related cases, noting that there was no judicial order halting the operation of the Act.

The court’s indisposition to issue an order came amid concerns expressed by Muslim litigants, who argued that the absence of clarity from the apex court had led to a mushrooming of cases in district courts and high courts.

The origins of the current legal battle trace back to June 2020, when the Vishwa Bhadra Pujari Purohit Mahasangh, a Lucknow-based organisation, filed a petition challenging the Act.

Represented by advocate Vishnu Shankar Jain, the group sought to declare Section 4 of the Act unconstitutional, arguing that it barred Hindus from reclaiming their religious properties, including the disputed sites in Kashi and Mathura.

The petition described the Act as an impediment to rectifying historical injustices and claimed it violated fundamental rights under the Constitution.

Subsequently, several other petitions followed, including one from Bharatiya Janata Party (BJP) leader Subramanian Swamy, who argued that the Act infringed upon his right to pray at temples forcibly converted during foreign invasions.

Another prominent petition was filed by advocate Ashwini Upadhyay in October 2020, who contended that the legislation discriminates against Hindus, Buddhists, Jains and Sikhs by curbing their right to restore religious sites destroyed before 1947.

Upadhyay also argued that the Act violated the fundamental rights of these communities to manage and preserve their places of worship. Upadhya’s plea is currently the lead petition in the matter.

In addition to these challenges, Kumari Krishna Priya, a member of the Kashi royal family, filed an application arguing that the Act was discriminatory for exempting the Ram Janmabhoomi dispute while not extending similar exemptions to other significant sites such as the Kashi Vishwanath temple and the Krishna Janmabhoomi in Mathura.

The growing list of legal challenges prompted interventions from Muslim groups, including the Jamiat Ulama-i-Hind, which has opposed the petition, arguing that striking down the law would undermine the secular character of the Constitution and rekindle fears within the Muslim community about the safety of their places of worship.

It referenced the Ayodhya dispute as a cautionary tale, warning that even issuing notices on such petitions could destabilise communal harmony.

The 2019 Supreme Court verdict in the Ayodhya case, which granted the disputed site to Hindus for the construction of a temple, explicitly upheld the Places of Worship Act as a critical legislative safeguard for India’s secular framework.

The judgment emphasised that “historical wrongs cannot be remedied by taking the law into one’s own hands” and underscored the principle of non-retrogression, which prohibits revisiting settled issues.

The court also noted that the Act served as a constitutional commitment to preserve the religious character of all places of worship and promote equality among religious communities.

However, remarks by former CJI Dhananjaya Y Chandrachud during the hearing of the Gyanvapi mosque dispute in May 2022 and October 2023, suggesting that the religious character of sites might need to be determined for the Act’s application, sparked controversy.

Although these remarks were not part of a formal judicial ruling, Muslim organisations claim that they led to ambiguity that has allowed conflicting interpretations by subordinate courts.

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The December 12 hearing is expected to draw widespread attention, as the Supreme Court delves into the legal and constitutional complexities surrounding the Places of Worship Act.

With the surge in disputes over historical religious sites raising questions about communal harmony and the secular framework of the Constitution, all eyes will be on the bench to provide much-needed clarity on the scope and validity of the 1991 law.

The court’s deliberations are anticipated to have far-reaching implications for how the country navigates purported historical grievances while upholding the constitutional promise of equality and secularism.