Context: The Supreme Court asked the Centre to respond to a plea challenging the Places of Worship (Special Provisions) Act, 1991 which freezes the status of places of worship as it was on 15th August 1947. The Supreme Court in its recent Ayodhya verdict also mentions this act which prohibits the conversion of religious places of worship as it existed at the time of Independence. In this article, we try and understand different possible dimensions and debates surrounding this act.
Relevance:
GS-I: Social empowerment, communalism, regionalism & secularism.
What is the law about?
- Passed in 1991, the law seeks to maintain the “religious character” of places of worship as it was in 1947 — except in the case of the Ram Janmabhoomi-Babri Masjid dispute, which was already in court.
- The law was brought in at the peak of the Ram Mandir movement, exactly a year before the demolition of the Babri Masjid.
- Introducing the law, the government said in Parliament that it was adopted to curb communal tension.
Provisions of the act:
- Section 3 of the Act bans the conversion of a place of worship or even a section of it into a place of worship of a different religious denomination or a different segment of the same religious denomination.
- Section 4(2) of the act says that all suits, appeals, or other proceedings regarding converting the character of a place of worship (that were pending on 15th August 1947) will come to end when the Act commences and no fresh proceedings can be filed.
- However, legal proceedings can be initiated if the change of status took place after the cut-off date of 15th August 1947 (after enactment of the Act).
- Section 5 says: “Act not to apply to Ram Janma Bhumi Babri Masjid. Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.”
- Besides the Ayodhya dispute, the Act also exempted:
- Any place of worship that is an ancient and historical monument or an archaeological site, or is covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
- A suit that has been finally settled or disposed of
- Any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.
- Any conversion of any such place effected before such commencement is not liable to be challenged in any court, tribunal, or other authority being barred by limitation under any law for the time being in force.
- The Act also imposes a positive obligation on the State to maintain the religious character of every place of worship as it existed at the time of Independence.
- This legislative obligation on the State to preserve and protect the equality of all faiths is an essential secular feature and one of the basic features of the Indian Constitution.
- Penalty: Section 6 of the Act prescribes a punishment of a maximum of three-year imprisonment along with a fine for contravening the provisions of the Act.
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Supreme court view on the act
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Reasons for challenging the act now
Petitioners View:
- Petitioner challenged the law on the ground that violates secularism
- It has been argued that the cut-off date of 15th August 1947 is “arbitrary, irrational and retrospective” and prohibits Hindus, Jains, Buddhists, and Sikhs from approaching courts to “reclaim” their places of worship which were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.
- It is argued that the Centre has no power to legislate on “pilgrimages” or “burial grounds” which is under the state list.
- Petitioners argued that this law is a piece of colorable legislation and the supreme court should invoke the Doctrine of Casus Omissus.
The doctrine of colorable legislation
- It is based upon the doctrine of power separation. Separation of power mandates to strike power of balance between different state components.
- It is based on the maxim that “what cannot be done directly, cannot also be done indirectly”.
- This doctrine of colorable legislation is applied when a Legislature does not have the right to make law upon a particular subject but indirectly makes one.
- Application of this Doctrine: K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, “If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers”.
The doctrine of Casus Omissus
- This doctrine refers to cases of omission in-laws and it allows the judiciary to provide the remedy for any cases of omission by issuing appropriate orders and directives. These directives can be issued by the supreme court under Article 142 of the constitution.
Governments View:
- The government had said it could make use of its residuary power under Entry 97 of the Union List to enact this law.
- Entry 97 confers residuary powers to the Centre to legislate on subjects that are not enumerated in any of the three lists ( union, state, and concurrent).
Way forward
Places of Worship (Special Provisions) Act, 1991 addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic structure of the Constitution.
