A Public Interest Litigation (PIL) has been filed in the Supreme Court, challenging the constitutional validity of Sections 2, 3 and 4 of the Places of Worship (Special Provisions) Act 1991, as they not only offended Articles 14, 15, 21, 25, 26 and 29, but also violated the principles of secularism, which were integral part of the basic structure and Preamble of the Constitution.
The PIL has been filed by Ashwini Kumar Upadhyay through Advocate Ashwini Kumar Dubey.
According to the petition, center by making impugned provisions in 1991 has created arbitrary irrational retrospective cutoff date , declared that character of places of worship and pilgrimage shall be maintained as it was on 15.8.1947 and no suit or proceeding shall lie in Court in respect of the dispute against encroachment done by barbaric fundamentalist invaders and such proceeding shall stand abated. If suit / proceeding filed on the ground that conversion of place of pilgrimage has taken place after 15.8.1947 and before 18.9.1991 that shall be disposed off in terms of S. 4 (1).
Center has barred the remedies against illegal encroachment on the places of worship and pilgrimages and Hindus Jains Budhists Sikhs cannot file suit or approach High Court. Hence , won’t be able to restore their places of worship and pilgrimages including Temples , Endowments , Mutts etc from hoodlums and illegal barbaric acts of the invaders will continue in perpetuity , said the Petition.
It is submitted that the Centre by making impugned provisions has , without resolution of the disputes through process of Law , abated the suit / proceedings , which is ‘ perse ‘ unconstitutional and beyond the law making power , for the reason that the impugned provisions cannot be implemented with retrospective effect and the remedy of resolution of dispute pending , arisen or arising cannot be barred . Centre neither can close doors of Courts of first instance , Appellate Courts and Constitutional Courts for aggrieved Hindus Jains Sikhs Buddhists nor take away the power of High Courts and Supreme Court , conferred under Articles 226 and 32 of the Constitution .
The maxim ubi jus ibi remedium has been frustrated by the impugned provisions in pending suit / proceeding , in which the cause of action has arisen or continue and remedy available to aggrieved person through court has been abolished thus violating the concept of justice and ‘ Rule of law ‘ which is core of Articles 14-15 .Sections 2,3,4 not only offend right to pray practice prorogate religion ( Article 25 ) , right to manage maintain administer place of worship and pilgrimage ( Article 26 ) and right to conserve culture ( Article 29 ) but also contrary to the duty to protect historic places ( Article 49 ) and preserve religious – cultural heritage ( Article 51A ) , alleged the PIL.
The Petitioner submitted that that Pilgrimage is State subject [ Entry – 7 , List – II , Schedule – 7 ] hence Center neither can restrain Hindus Jains Budhists Sikhs from taking over complete possession of places of worship & pilgrimage through judicial process nor can make law to abridge the rights , guaranteed under Articles 25-26 and particularly with retrospective effect.
“Sections 2 , 3 , 4 offend the basic dictum of Hindu law enshrined in Vedas , Purans , Shastra , Smritis , Ramayan and Bhagavad Geeta that the Idol represents the Supreme Being and so its existence is never lost and deity cannot be divested from its property even by the Ruler or King . Hence, Hindus have fundamental right under Article 25-26 to worship the deity at the place ‘ It ‘ is and utilize deity’s property for religious purposes subject to public order, morality and health. “
Upadhyay stated that the Center has transgressed its legislative power by barring the remedy of judicial review, which is a basic feature of the Constitution. Apex Court has reiterated that the remedy of judicial review cannot be taken away. Indira Ghandi v. Raj Narayan , [( 1975 ) SCC ( Supp ) 1 ] , Minerva Mills Ltd v . Union of India [ ( 1980 ) 3 SCC 625 ] Kihota Holohon v Zachilhu [ ( 1992 ) 1 SCC 309 ] Ismail Farooqui v. Union of India [ ( 1994 ) 6 SCC 360 ] L Chandra Kumar v. Union Of India [ ( 1997 ) ( 3 ) SCC 261 ] I.R. Coelho v. State of T.N. [ ( 2007 ) 2 SCC 1 ].
It is highlighted that the Apex Court , in a catena of decisions has held that right to judicial remedy cannot be taken away by the State and the power of courts and particularly constitutional courts , conferred under Article 32 and 226 of the Constitution cannot be frustrated and such denial has been held violative of basic structure of the Constitution and beyond legislative power of the State . Moreover , place of worship and pilgrimage is part of State subject [ Entry – 7 , List – II , Schedule – 7 ] hence Centre cannot make the impugned law .
“Hindus are fighting for complete possession of birthplace of Lord Krishna from hundreds of year and peaceful public agitation continues till date but while enacting the Act , Centre has excluded the birthplace of Lord Ram at Ayodhya but not the birthplace of Lord Krishna in Mathura , though both are the incarnations of Lord Vishnu , the creator and preserver . The Court has finally decided Ayodhya case on 9.11.2019 and found substance in the claim of Hindus and now a new temple is going to be constructed after more than 500 years of demolition by invaders . If Ayodhya case wouldn’t have been decided , Hindus would have been denied justice . Thus , restriction on Hindus to approach Court is arbitrary irrational and against the principle of rule of law , which is core of Article 14-15 .”
The PIL alleged that Hindus Jains Buddhists Sikhs are continuously paying homage to the places of worship and pilgrimage though physical possession has been taken by members of other faith . Therefore the Act is void and unconstitutional for many reasons :
( i ) It offends right of Hindus Jains Buddhists Sikhs to pray profess practice prorogate religion ( Article 25 ) ( ii ) It infringes on rights of Hindus Jains Buddhists Sikhs to manage maintain administer places of worship and pilgrimage ( Article 26 ) ( iii ) It deprives Hindus Jains Buddhists Sikhs of owning and acquiring religious properties of deity ( misappropriated by other communities ) ( iv ) It takes away right of judicial remedy of Hindus Jains Buddhists Sikhs to restore places of worship and pilgrimage and property of deity ( v ) It deprives Hindus Jains Buddhists Sikhs to restore places of worship and pilgrimage connected with cultural heritage ( vi ) It restricts Hindus Jains Buddhists Sikhs to restore complete possession of places of worship and pilgrimage but allows Muslims to claim under S.107 , Waqf Act ( vii ) It legalize barbarian acts of invaders ( viii ) It violates Hindu law that ‘ Temple property is never lost even if enjoyed for years and even the king cannot take property as deity is embodiment of God & juristic person , represents ‘ Infinite the timeless ‘ and cannot be confined by the shackles of time .
“According to Vedas , Purans , Geeta and Ramayan , it is a settled principle that deity property will continue to be deity property and other’s possession will be invalid . In Mahant Ram Swaarop Das Case [ AIR 1959 SC 951 , Para 10 ] , the Court held that : ” 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 . “, reads the PIL.