Another Public Interest Litigation plea in the Supreme Court has challenged the provisions of the Places of Worship Act stating that Muslims cannot assert any right in respect of any piece of land claiming to be a mosque unless it has been constructed on legally owned and occupied virgin land.
The Petition has been filed by Supreme Court Lawyer and Bharat Youth Awardee Karunesh Shukla. Case Title: Karunesh Kumar Shukla Vs. Union of India & Ors.
The petition states that the Temple's religious character does not change after demolition of roof, walls, pillars, foundation and even offering Namaz.
After the Pran Pratishtha of the idol, a Temple is always a Temple until the Idol is shifted to another temple with rituals of Visarjan, the plea adds.
It also states that the structures which have been constructed according to tenets of Islam and mosques constructed against the provisions contained in Islamic law cannot be termed as Mosque.
"Religious Character of temples (places of Worship) and mosques (places of Prayer) is totally different. So, the same Law can‟t be applied to both", adds the PIL.
It is further stated that the Temple is a place of worship as God resides therein and that's why the Temple is always a temple and its religious character never changes.
Whereas Mosque is simply a place of prayer and that's why, in gulf countries (birthplace of Islam), it is demolished/shifted even for making roads, schools hospitals, and public offices, the petition submits.
Accordingly, the plea has challenged Section 2, 3, and 4 of the Places of Worship Act, 1991 stating that provisions are violative of Articles 14, 15, 21, 25, 26, 29 of the Constitution.
It may also be noted that another plea challenging the Places of Worship Act 1991 is pending before the Supreme Court filed by Advocate Ashwini Upadhyay which states that "the Act has taken away the power of the Court and Religious Sects to restore their places of Worship". Notice was issued on the petition in March of 2021.
This is the 10th petition before the Supreme Court challenging the Places of Worship (Special Provisions) Act, 1991.
The last (eighth) PIL was filed by Former Member of Parliament Chintamani Malviya stating that the Places of Worship Act takes away the rights of Hindus, Jains, Buddhists, and Sikhs to restore their 'places of worship and pilgrimages', destroyed by barbaric invaders.
The said PIL was filed before the Supreme Court through Advocate Rakesh Mishra.
"It excludes the birthplace of Lord Rama but includes the birthplace of Lord Krishna, though both are the incarnation of Lord Vishnu, the creator and equally worshiped all over the world." The PIL states.
The plea further alleges that the Places of Worship Act blatantly offends the right of Hindus, Jains, Buddhists, and Sikhs to restore, manage, maintain and administer the 'places of worship and pilgrimage' guaranteed under Article 26 of the Indian Constitution.
The Ministry of Law and Justice, Ministry of Home Affairs and The Ministry of Culture have been made the respondents in the said PIL.
Additionally, the plea raises the following questions of law:
- Whether the Centre has the power to close the doors of Courts?
- Whether Centre has the power to bar judicial remedy against illegal encroachment on the places of worship and pilgrimage?
- Whether Centre has transgressed its power by making provisions to bar judicial remedy available to aggrieved Hindus Jains Buddhists Sikhs against the wrong committed by invaders and law breakers?
- Whether the Hindu law is the ‘Law in force’ within the meaning of Article 372(1) after commencement of the Constitution?
- Whether Section 2, 3, and 4 of the impugned Act is void under Article 13(2) and ultra vires to the Article 14, 15, 21, 25, 26, and 29?
- Whether any rule regulation custom usage having the force of law, running counter to Articles 25-26 is void by virtue of Article 13(1)?
- Whether illegal construction on religious places before 15.8.1947 has become void and non-est by virtue of injunction under Article 13(1)?
- Whether exclusion of Lord Ram's birthplace and inclusion of Lord Krishna's birthplace offends Article 14 as both are incarnations of Lord Vishnu?
- Whether the impugned Act violates the principle of secularism as same has been made to curb the right of Hindus Jains Buddhists Sikhs to restore their places of worship and pilgrimage through Court?
The Petitioner contends that the Places of Worship Act has been enacted in the garb of ‘Public order’, which is a State subject [Entry-1, List-II]. Likewise, ‘Pilgrimage, other than pilgrimages to places outside India’ is also State subject [Entry-7, List-II]. Therefore, Centre cannot enact the impugned Act. Article 13(2) prohibits the State to make laws to take away the rights conferred under Part-III but the Act takes away the rights of Hindus Jains Buddhist Sikhs to restore their ‘places of worship and pilgrimages’, destroyed by barbaric invaders. It 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 all over the world, hence arbitrary, irrational and offends Articles 14-15. Right to justice, right to judicial remedy, right to dignity are integral part of Article 21 but impugned Act brazenly offends them. Rights to pray, profess, practice and propagate religion of Hindus Jains Buddhists Sikhs, guaranteed under Article 25, have been deliberately and brazenly offended by the Act. The 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.
Right to restore and preserve script and culture of the Hindus Jains Buddhists Sikhs, guaranteed under Article 29 of has been brazenly offended by the Act. Directives are nevertheless fundamental in the governance of the Country and Article 49 directs the State to protect places of national importance from disfigurement and destruction. State is obligated to respect the ideals and institutions and value and preserve the rich heritage of Indian culture. Only those places can be protected, which were erected or constructed in accordance with personal laws of the person who erected/constructed them, but places erected/constructed in derogation of the personal law, cannot be termed as a ‘place of worship’. The retrospective cutoff-date i.e. 15.8.1947 was fixed to legalize the illegal acts of barbaric invaders and foreign rulers. The Hindu Law was the ‘Law in force’ at the commencement of the Constitution by virtue of the Article 372(1).
Recently, Lt. Col. Anil Kabotra, retired Army Officer and 1971 War-Veteran, also filed in the Apex Court a plea to challenge the constitutional validity of Sections 2, 3, and 4 of the Places of Worship (Special Provisions) Act 1991, which not only offends Articles 14, 15, 21, 25, 26, and 29 but also violates the principles of secularism, which is an integral part of the Preamble and basic structure of the Constitution.
The other nine pending pleas against the Places of Worship Act, 1991 are pleaded by the following petitioners:
- Adv. Ashwini Upadhyay
- Subramanian Swamy
- Vishwa Pujari Purohit Mahasangh through Adv. Vishnu Jain
- Adv. Chandra Shekhar
- Guru Devakinandan Thakur
- Adv. Rudra Vikram Singh
- Swami Jeetendranand
- Lt. Col. Anil Kabotra
- Former MP Chintamani Malviya
The Act was first challenged by Adv. Ashwini Upadhyay and notice was issued on the petition in March 2021.
