Challenges to Places of Worship Act, 1991 | Day 2: Supreme Court stays registration of further suits in district courts seeking surveys of places of worship

Constitutionality of the Places of Worship Act

Judges: Sanjiv Khanna CJI, P.V. Sanjay Kumar J, K.V. Viswanathan J

Today, a Special Bench led by Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K.V. Viswanathan heard a set of petitions challenging the Places of Worship Act, 1991. Other petitions seeking an implementation of the Act were also tagged with it. The Special Bench was announced by the Supreme Court on 7 December in the backdrop of multiple petitions seeking surveys of mosques across India. Two notable cases were the Shahi Jama Masjid, Sambhal and the Shahi Eidgah mosque in Mathura. 

In the hearing, the Court stayed the registration of further suits seeking archaeological, scientific, non-scientific, etc. surveys of places of worship. The stay will continue to be in place until the Court determines the larger decision on the validity of the Act. The Court also directed the Union government to respond to the pleas challenging the constitutionality of the Act, noting that there was no reply from the Union’s side. It granted the Union four weeks time to file a counter-affidavit.

The Court also appointed nodal counsels for the petitioners and intervenors.

Background

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 15 August 1947. It also bars Courts from determining whether any place of worship has been converted after 15 August 1947. Section 5 excludes the application of the Act 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.

Upadhyay, in his petition, 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 claims that the Act violates the right to religious freedoms under Articles 25, 26 and 29.

On 7 December 2024, following deadly violence in Sambhal after a district court ordered survey of the Shahi Jama Masjid, and the filing of a litany of suits across district courts disputing the existence of Hindu temples underneath mosques and shrines in North India, CJI Sanjiv Khanna formed a special bench also consisting of Justices P.V. Sanjay Kumar and K.V. Viswanathan, to hear the case. Subsequently, multiple intervening applications were filed seeking implementation of the legislation.

CJI Khanna: No registration of suits seeking surveys while matter sub-judice

CJI Khanna thundered, “We cannot have it like this. How do we even pass an order?”. This was after multiple counsel thronged podiums on both sides to put forth their claims and arguments. Amidst the chaos, the Union government’s stance was still unclear.

The first order of business was to bring order to the litigation. Notably, five petitions were tagged with the case, including that of Dr. Subramanian Swamy, former Rajya Sabha MP and a leader in the Bharatiya Janata Party, seeking a declaration that the Act was unconstitutional.

CJI Khanna noted that the Court was already cognisant of two place of worship disputes. One was the dispute surrounding the Shahi Eidgah mosque in Mathura, which petitioners belonging to the Hindu community have alleged was built on the Krishnajanmabhoomi site. The next suit was the Sambhal Shahi Jama Masjid dispute where the Court restrained the district court from passing any orders to implement a survey until 8 January 2025.

Intervenors seeking an implementation of the Act informed the Court that eighteen suits have been registered across district courts concerning ten mosques or shrines.

As CJI Khanna expressed intent to stay the registration of further such suits demanding surveys, petitioner counsels raised objections. Senior Advocate J. Sai Deepak contended that the purpose of the Act was not to prevent the filing of surveys but to give sanction to them. We may get a clearer picture of Deepak’s argument when detailed hearings resume in the case. 

CJI Khanna disregarded the argument and ordered that while suits can be filed seeking surveys, district courts will not register further surveys while the case remains pending. He further stated that no proceedings would be undertaken till further orders are passed. District courts were also barred from passing any “effective” interim or final orders, including regarding surveys till the next hearing in February 2025 or further orders.

Nodal counsels appointed

Noticing that there are comprehensive sets of directions being sought by various parties, the Court decided to appoint nodal counsels for each side.

Advocate Ejaz Maqbool was appointed as the nodal counsel for intervenors who are seeking the implementation of the Act.

Advocate-on-Record Vishnu Shankar Jain was appointed nodal counsel for the petitioners seeking the law to be declared unconstitutional.

Advocate Kanu Agarwal was appointed the nodal officer for the Union of India.

Solicitor General Tushar Mehta representing the Union of India suggested that all submissions be accommodated on a common Google drive.

The Court gave Union four weeks to file a reply.

The matter will be next listed on 17 February 2025.

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