The Supreme Court on Wednesday dismissed as withdrawn a petition filed by Advocate Ashwini Upadhyay seeking similar rights for Hindus, Buddhists, Jains and Sikhs to administer their religious places without State interference like Muslims, Parsis and Christians.

The Bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra refused to entertain the plea on grounds that it needed to raise more specific prayers to be considered by the court.

The Apex Court, however, did not dismiss other petitions tagged with Upadhyay’s PIL, which raised specific reliefs for a uniform endowment code.

The Bench granted time to the Central government in those matters, to file a response.

Solicitor General Tushar Mehta, appearing for the Union government, urged the Apex Court to separate Upadhyay’s plea from the rest of the petitions.

He said the Government would file a response in other matters within a week.

The SG alleged that Advocate Upadhyay was doing this just for popularity.

Filed by Advocate Upadhyay, the petition sought similar rights to
Hindus, Jains, Buddhist and Sikhs to establish, manage and maintain the religious places.

The petition further sought rights to the above communities to own, acquire and administer movable and immovable properties of their religious places on the lines of Muslims and Christians.

It further stated that all laws made to administer properties of temples and gurdwaras were arbitrary and violated Article 14, 15, and 26.

As per the plea, if necessary, the court should direct the Central government or the Law Commission of India to draft a common charter for religious and charitable institutions and Uniform Code for Religious and Charitable Endowments.

A Delhi court deferred its judgment on Thursday on an appeal seeking worshipping rights for Hindus and Jains inside the Qutub Minar complex, claiming the Quwwat-ul-Islam mosque was built after destroying 27 temples.

The Court of Additional District Judge Dinesh Kumar did not deliver the verdict after noting that a new application has been filed by a Delhi resident, claiming ownership of the property where the Minar is located.

Petitioner Kunwar Mahendra Dhwaj Prasad Singh, through an application filed by Advocate M.L. Sharma, claimed he was the rightful owner of the property of Qutub Minar and therefore, the minaret along with Quwwat-ul-Islam inside the complex mosque, should be given to him.
The Court, while listing the case for further hearing on August 24, issued notices to the Archaeological Survey of India, as well as the contesting parties.

In December 2021, a civil court had dismissed the suit, holding that past wrongs cannot be the basis for disturbing peace of our present and future.

During arguments, ASI had informed court that though there was no denial of existence of Hindu sculptures inside the Qutub Minar complex, a fundamental right to workshop can’t be claimed with respect to the protected monument.

The order was reserved on May 24 by Additional District Judge Nikhil Chopra of the Saket Court, who has now been transferred to the Rouse Avenue Courts.

A Public Interest Litigation has been filed in the Supreme Court seeking a declaration that Section 2, 3, 4 of the Places of Worship (Special Provisions) Act, 1991 is void and unconstitutional for being violative of Articles 14, 15, 21, 25, 26, 29 of the Constitution, in so far as it legalizes ‘the ancient historical and puranic places of worship and pilgrimage’, illegally occupied by barbaric foreign invaders.

The PIL has been filed by Swami Jeetendranand Saraswatee through Advocate Bijan Kr. Ghosh.

According to the Petition, Sections 2, 3, 4 has, without resolution of the disputes through process of the law, abated the suit/proceedings, which is ‘per se’ unconstitutional and beyond its law-making power. Moreover, impugned provisions cannot be forced with retrospective effect and the judicial remedy of dispute pending, arisen or arising cannot be barred. The Centre neither can close the doors of Courts of First Instance, Appellate Courts, Constitutional Courts for aggrieved Hindus, Jains, Buddhists and Sikhs nor take away the power of High Courts and Supreme Court, conferred under Article 226 and 32.

The Centre has transgressed its legislative power by barring remedy of judicial review which is a basic feature of the Constitution. The Apex Court has reiterated that judicial review cannot be taken away, said the petition.

It is stated that the sovereign can remedy wrong committed by invaders and the sovereignty lies in people who have given themselves a Constitution, which has distributed the functions in three organs- Legislature, Executive and Judiciary and same has to be exercised by every branch within the parameters. Judiciary is one of the components of a sovereign State and Courts have power and duty to protect rights of the citizens. The Centre enacted the Act in question to impose injunction on rights of Hindus, Jains, Sikhs and Buddhists to reclaim their place of worship and pilgrimage.

The petitioner submitted that only those Temples, Mosques, Churches, Gurudwaras can be protected under the Act, which were erected /constructed in accordance with the spirit of personal law applicable to person constructing them, but religious places, erected/ constructed in derogation of the personal law, cannot be termed as place of worship.

The mosque can be constructed only over Waqf property and no waqf can be created by any Muslim including Ruler, on the places of worship and pilgrimage of Hindus, Jains, Buddhists, Sikhs, alleged the petitioner.

“Places of worship cannot be taken by the carrot and the stick. Illegal encroachment by other faiths doesn’t yield any right and equity in favor of usurpers,” read the PIL.

Grounds mentioned in the PIL:-

A. Because the impugned Act has been enacted in the garb of ‘Public order’, which is State subject [Entry-1, List-II, Schedule-7]. Likewise, ‘Pilgrimage, other than pilgrimages to places outside India’ is also a State subject [Entry-7, List-II, Schedule-7]. Therefore, Centre has no legislative competence to enact the impugned Act.

B. Because Article 13(2) prohibits the State to make law to take away the rights conferred under Part-III but the impugned Act takes away the rights of Hindus Jains Buddhist Sikhs to restore their ‘places of worship and pilgrimages’, destroyed by barbaric invaders.

C. Because the impugned Act excludes the birthplace of Lord Rama but includes birthplace of Lord Krishna, though both are the incarnation of Lord Vishnu, the Creator and equally worshiped throughout the word, hence arbitrary, irrational and offends Articles 14-15.

D. Because right to justice, right to judicial remedy, right to dignity are integral part of Article 21 but impugned Act brazenly offends them.

E. Because right to pray, profess, practice and propagate religion of Hindus Jains Buddhists Sikhs, guaranteed under Article 25, have been deliberately and brazenly offended by the impugned Act.

F. Because the impugned Act blatantly offends the rights of Hindus, Jains, Buddhists, Sikhs to restore, manage, maintain and administer the ‘places of worship and pilgrimage’, guaranteed under Article 26.

G. Because the right to restore and preserve the script and culture of the Hindus, Jains, Buddhists, Sikhs, guaranteed under Article 29 of the Constitution have been brazenly offended by the impugned Act.

H. Because directive principles are nevertheless fundamental in the governance of the Country and Article 49 directs the State to protect the places of national importance from disfigurement-destruction.

I. Because the State is obligated to respect the ideals and institutions and values and preserve the rich heritage of Indian culture.

J. Because the State has no legislative competence to enact law infringing the fundamental right guaranteed to citizens in view of the embargo created by Article 13. Moreover, the Act affects the right to religion of Hindus, Jains, Buddhists, Sikhs and snubs their voice against illegal inhumane barbarian action committed in the pre-independence period.

K. Because only those places can be protected, which were erected or constructed in accordance with personal law of the person erected or constructed, but places erected or constructed in derogation of the personal law, cannot be termed as a ‘place of worship’.

L. Because the retrospective cut off-date i.e., 15.8.1947 was fixed to legalize the illegal acts of barbaric invaders and foreign rulers.

M. Because the Hindu Law was ‘Law in force’ at the commencement of the Constitution by virtue of Article 372(1).

N. Because Hindus Jains Buddhists Sikhs have the right to profess, practice and propagate religion as provided in their religious scriptures and Article 13 prohibits from making law which takes away their rights.

O. Because the status of mosque can be given only to such structures which have been constructed according to tenets of Islam and all the mosques constructed against the provisions contained in Islamic law cannot be termed as mosque. Thus, Muslims cannot assert any right in respect of any piece of land claiming to be a mosque unless the same has been constructed according to Islamic law. Moreover, the property vested in Deity continues to be the Deity’s property irrespective of the fact that any person has taken illegal possession.

P. Because S.4(1) violates the concept that ‘Temple property is never lost even if it is enjoyed by strangers for hundreds of years; even the king cannot deprive temples of their properties. The Idol/deity which is embodiment of supreme God and is a juristic person, represents the ‘Infinite- the timeless’ cannot be confined by the shackles of time.

Q. Because Centre neither can take away the power of Civil Courts to entertain the suit for restoration nor can take the power of High Courts and Supreme Court conferred under Article 226 and 32. The impugned Act has barred right and remedy against encroachment made on religious places of Hindus Jains Buddhists Sikhs. Centre has transgressed its legislative power in barring remedy of judicial review, which is the basic feature of the Constitution of India.

R. Because from 1192 to 1947, barbaric invaders damaged-desecrated religious places of Hindus Jains Buddhists Sikhs, depicting Indian culture from north to south, east to west. Moreover, the impugned Act has destroyed the Hindu Law relating to the deity as deity and its property is never lost and devotees have the right to sue a wrongdoer for restoration of property. It is well established in Hindu law, that property once vested will continue to be deity’s property.

S. Because of the touchstone of the principle of secularism read with Articles 14-15, it is very clear that the State cannot show its inclination/ hostile attitude towards any religion, may be majority or minority. Thus, impugned acts violate the principle of secularism as it curb the right of Hindus Jains Buddhists Sikhs for restoration of their places of worship destroyed before 15.8.1947 even through Court.

T. Because the impugned act, without resolution of dispute through process of law, has abated the suit and proceedings, which is unconstitutional and beyond law making power of the Centre. The impugned provisions cannot be implemented with retrospective effect and the remedy of disputes pending, arisen or arising cannot be barred. Centre neither can close the doors for aggrieved persons nor can take away the power of Courts of first instance, Appellate Court and Constitutional Courts, conferred under Article 226 or 32.

U. Because the maxim ubi jus ibi remedium has been frustrated by the impugned Act as pending suits/proceeding in respect of which cause of action have arisen and continuing wrong, the remedy of the aggrieved person for resolution of disputes through Court have been abolished, which violate the very concept of justice and ‘Rule of law’.

V. Because the mosque constructed at temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity’s property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property. Right to restore back religious property is unfettered and continuing wrong and injury may be cured by judicial remedy.

W. Because barbaric invaders destroyed a number of places of worship and pilgrimage to make Hindus Jains Buddhists Sikhs realize that they have been conquered and have to follow the dictum of Ruler. Hindus Jains Buddhists Sikhs had suffered from 1192 to 1947. Question is as to whether even after independence; they cannot seek judicial remedy to undo the barbarian acts through the process of court to establish that law is mightier than the sword.

X. Because there are many International Conventions on the cultural and religious heritage and India is signatory of them. Therefore the Centre is obligated to act in accordance with the conventions viz.

(i) Fourth Geneva Convention 1949 reinforced the protection of ‘Places of worship which constitute cultural – spiritual heritage of people

(ii) Statutes of United Nations and UNESCO

(iii) Hague Convention for the Protection of Cultural Property in the event of Armed conflict 1954

(iv) World Heritage Convention 1972

(v) Convention for the Protection of Architectural Heritage of Europe 1985

(vi) European Convention on Protection of Archaeological Heritage 1969

(vii) European Landscape Convention 2000 and

(viii) The European Convention on Protection and Promotion of Diversity of Cultural Expressions 2005.

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.