PIL filed in Supreme Court Challenging the Constitutionality of Section 4 of Places of Worship (Special Provision) Act.

(Judicial Quest News Network)

Challenging the Constitutionality of Section 4 of the Places of Worship (Special Provision) Act, 1991, a PIL has been filed in Supreme Court.

The petitioner argues that Parliament by making impugned provisions has created a cut-off date with retrospective effect to implement the Act, i.e w.e.f.15.8.1947 declaring that the character of a place of worship as was on 15.8.1947 shall be maintained and no suit or any proceeding shall lie in any court including High Court in respect of any dispute against encroachment of religious properties made by unsocial elements or by law breakers at any point of time before 15.8.1947.

Section 4(1) of the impugned Act states as under:-

“It is hereby declared that the religious character of a place of worship existing on the 15^th day of August 1947 shall continue to be the same as it existed on that day.”

Section 4(2) of the impugned Act provides that:-

“If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any of worship, existing on the 15^th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority;

Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1)”.

Such proceedings shall stand abated, and further if any suit, appeal or proceeding is filed on the ground that conversion of religious place has taken place after 15.8.1947 and before 18.91991 (Date of the Enforcement of Act), the same shall be disposed of in terms of sub section (1) of Section 4 i.e to maintain the status aas was existing on 15.8.1947.

Further the petitioner argues that “The impugned Act has barred the right and remedy against encroachment made on religious property of Hindus exercising might of power by followers of another faith. The result is that Hindu devotees cannot raise their grievance by instituting any suit in Civil Court or invoking the jurisdiction of the Hon’ble High Court under Article 226 of the Constitution of India against high handiness of ultras and will not be able to restore back the religious character of Hindu Endowments, Temples, Mutts etc from hoodlums if they had encroached upon such property before 15^th August 1947 and such illegal and barbarian act will continue in perpetuity.

The Parliament by making impugned provision has without resolution of dispute through process of the Court has abated the suit and proceedings which is perse unconstitutional and beyond law making power of Parliament for the reason that the impugned provision cannot be implemented with retrospective effect and the remedy of resolution of dispute pending, arisen or arising cannot be barred by Parliament and Parliament cannot close the doors for aggrieved persons and cannot take away the power of the Courts of first instance, Appellate Court and the power of Constitutional Courts conferred under Article 226 and 32 of the Constitution of India.   

The plea states that “The impugned Act destroys the basic principle of Hindu law enshrined in Vedas, Shastra, Smrites and religious scriptures of Hindu Dharama that Idol represents the supreme being and so its existence is never lost and deity cannot be divested from its property even by any Ruler or King. The Hindu devotees have fundamental right under Article 25 of the Constitution of India to worship the deity at the place ‘It’ is and utilize deity’s property for religious purposes subject to morality, health and public order. “

The parliament cannot restrain Hindu devotees to get back their religious places of worship through judicial process and cannot make any law which takes away or abridges the vested religious right of devotees and cannot make any law with retrospective effect.

The Parliament while enacting the Act has excluded the property in dispute at Ayodhya for which Hindu have been fighting for restoration of temple, massive public agitation was taken up and same was affecting political scenario of the country.

This Hon’ble Court has finally decided the Ayodhya dispute vide judgment dated 09.11.2019. The Hon’ble Court found substance in the claim of Hindus and now a new temple is going to be constructed after about 500 years of demolition of temple complex.

In case the Ayodhya case would not have been decided, the Hindu devotees would have been denied justice. Therefore any restriction on right to approach the Civil or High Court is against the basic principle of rule of law necessary component of a welfare State. 

The petitioner submits elaborately that

The substance of the case is that impugned Act is ultra-virus to Constitution of India as it:-

1. Infringes right of worship of Hindus guaranteed by Article 25 of the Constitution of India.
2. Deprives the right of Hindu Community under Article 26 of the Constitution of India from maintaining and  managing the religious properties belonging to deity usurped by members of other community.
3. takes away the remedy of Hindus to take back the places of worship and property attached thereto through Court which originally belong to a deity, and worship is  being continuously performed thereat by devotees in number of ways.
4. Deprive the members of Hindu community to take back their place of worship connected with the cultural and religious heritage of mother of India. It is noteworthy that Hindu Devotees are paying homage to their ancient religious places and continuously worshiping even though physical possession wholly or partly have been taken by member of another fait only to trample the cultural Heritage of Hindus.
5. discriminates Hindus with the members of Muslim Community in the matter of restoring possession of places of worship denying equality before the law guaranteed under Article 14 of the Constitution of India.
6. Validates the illegal and barbarous action of invaders restricting the right of Hindus to claim possession of the property whereas similarly situated Muslims can claim possession under Waqf Act as no limitation runs for them.

‘section 107 of waqf Act 1995 provides that:-                     Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any Waqf or for possession of any interest in such property.’

• Violates the concept of the Hindu law that ‘Temple property is never lost even if is enjoyed by strangers for hundreds of years; even the king cannot deprive temples of their properties. The Idol/deity which is an embodiment of supreme God and is a juristic person, represents the ‘Infinite- the timeless’ cannot be confined by the shackles of time.’
• According to Vedas,Purans, Upnishads and other sources of Hindu Law it is recognised principle that once deity property will continue to deity property and nobody’s possession will be valid.

In case of Mahant Ram Swaarop Das Ji Vs S.P. Shahi Special Officer – In charge of Hindu Religious Trusts, reported in AIR 1959 SC 951, in Para 10,  it has been 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.”

• takes away the right and remedy both of deity and worshiper whereas parliament cannot take away the power of the Constitutionals Courts. The Parliament cannot take away the right of civil court to entertain suits without creating any alternative forum.

takes away the remedy of a devotee to get back possession of religious places originally belonging to any sect and/or religious denomination.

1. is in violation of equality clause embodied in Article 14 of the Constitution as similarly situated members of Muslims community can take back a Waqf property without there being any period of limitation and as such the Act discriminates Hindus with similarly situated members of other community and the impugned Act is against the principle of Secularism as accepted by the Constitution of India.