What is the Constitutionality of Places of Worship Act?

9 Jun 2021  Read 283 Views

A plea challenging the Constitutional validity of Section 4 of The Places of Worship Act, 1991 has made it to the Apex Court, contending, the section bars the remedy of judicial review, thereby depriving Hindus, Sikhs, Buddhists and Jains the right to move the court to get their places of worship, destroyed or encroached upon restored. 

Section 4 of the act has been contended as being violative of Articles 25, 26 and 32 of the Constitution of India and the principles of secularism. We may get to know the clue to answer once the centre submits its response to the court.

The court in settling the Ayodhya dispute (M. Siddiq vs. Mahant Suresh Das, 2019) in favour of the Ram temple’s campaigners has resurrected the Buried issues of the various Hindu organisations claimed over two mosques, the Gyanvapi mosque in Varanasi and the Shahi Idgah in Mathura thereby left a hanging tale. In this backdrop, the Places of Worship act, 1991, which was brought in by the P.V. Narasimha Rao Government seeks to maintain the “religious character” of holy structures as it was at Independence. The law kept the Ayodhya dispute out of its purview to provide the scope for a possible negotiated settlement. The objective of the law was “to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947, and for matters connected therewith or incidental thereto.”

Places of worship act

The act has been a centre for a variety of opinions. According to some, the Act is ultra vires of the fundamental rights consecrated in part-III of the constitution while for others it is an instrument enforcing our commitment to secularism.

An Act of colourable legislation

The Act of 1991, is appropriately called an Act of colourable legislation, as it bars the Jurisdiction of the Courts to interfere and restricts the applicability of fundamental rights under Article-32, which cannot be suspended except as otherwise prescribed in the Constitution. The Chairman of the Drafting committee, B. R. Ambedkar asserted that “Article 32 is the very soul of the Constitution and the most important Article in the Constitution.” These words sufficiently clarify the importance of Article-32. The Supreme Court can issue writs under Article-32 for appropriate enforcement of the fundamental rights conferred by the Constitution. The apex court in many rulings has stated that the jurisdiction conferred on the Supreme Court under Article 32 and on the High Courts under Article 226 of the Constitution that “the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights.” As the courts have stated, “you cannot do indirectly which you are prohibited from doing directly.” 

Faith, Belief and worship are the foundation pillars of Article -25 and 26 of the Constitution, and prohibiting citizens from approaching the courts over any dispute over any religious matter of above significance is unreasonable and arbitrary in the context of the fundamental rights guaranteed by the constitution. The exception that extended to the “Ayodhya Matter” implies the importance of resolution of such disputes before the courts and therefore the exception should be further extended to the above-disputed matters.

A manifestation of Secular Values

The Act of 1991 was referred to as a manifestation of secular values of the Constitution that strictly prohibits retrogression. This act was enunciated as a measure to preserve communal harmony in long run, by discouraging the new claims by any group about the past status of any place of worship and attempts to reclaim the structures or the land on which they stood. In providing the guarantee that the religious character of the place of worship would remain the same as they were at the time of Independence, the legislature resolved the confidence in every religious community.

The Parliament enacted this law despite it being on the state list by using its residuary power under Entry 97 of the Union List. The then Home Minister S.B. Chavan, with regards to this law, stated, that “We see this as a measure to provide and develop our glorious traditions of love, peace and harmony.” The Supreme Court in M. Siddiq vs. Mahant Suresh Das, (2019) acknowledged the act as an effort to conserve the constitutional value of secularism by not permitting the status of a place of worship to be changed. The act has upheld the equality of all religions and secularism, which is a part of the basic features of the Constitution.

Conclusion

It was the Bhartiya Janata Party then, that criticised the move of bringing the Act of 1991 calling it an example of “pseudo-secularism”, and an effort to appease the minorities. Now it is on the same party to decide its future. The Government have to decide whether to include Mathura and Varanasi disputes as additional exceptions to the Act of 1991 or to uphold the validity of the act. However, if the act is amended with these additional exceptions, It must be taken care of that, these additional exceptions do not make way for more of such kind, it should not act as a ladder for other disputes to climb up over the communal harmony.

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