A Hindu body has moved the Supreme Court challenging a provision in the 1991 law that provides for maintaining the "religious character" of holy structures as it existed on August 15, 1947, in a bid to open the litigation route to reclaim disputed religious sites other than the Ram Janambhoomi in Ayodhya.
The petition, which has challenged Section 4 of the Places of Worship (Special Provisions) Act, 1991, assumes significance in the case of Kashi and Mathura, where two disputed mosques stand.
The law also prohibits the conversion of any temple into a mosque and vice versa.
The apex court on November 9 last year in a unanimous 5-0 verdict had backed the construction of a Ram temple by a trust at the disputed site in Ayodhya where the demolished Babri masjid once stood, and had ruled that an alternative five-acre plot must be found for a mosque in the Hindu holy town.
The five-judge bench, headed by then Chief Justice of India Ranjan Gogoi, had dealt with the 1991 Act and had said that the law is a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution.
The PIL, filed by Vishwa Bhadra Pujari Purohit Mahasangh, has sought directions to declare Section 4 of the 1991 Act as ultra vires, meaning beyond its legal power or authority, and unconstitutional.
The plea said the remarks were mere observations without any judicial force as the Act was not under challenge during the proceedings.
"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," it said.
“The result is that Hindu devotees cannot raise their grievance by instituting any suit in civil court or invoking the jurisdiction of the high court under Article 226 of the Constitution of India against the 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 August 15, 1947 and such illegal and barbarian act will continue in perpetuity,” the plea said.
Parliament, by making an impugned provision, has without resolution of dispute, through the process of court, abated the suit and proceedings, which is per se unconstitutional and beyond its law-making power, it said.
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, the plea said.
‘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,’ it said.
Parliament also cannot restrain Hindu devotees from getting back their religious places of worship through the judicial process, the plea said.
It cannot make any law which takes away or abridges the vested religious right of devotees and cannot make any law with retrospective effect, it said.
The plea, filed by the Hindu body and some priests, said devotees have the fundamental right under Article 25 of the Constitution of India to worship the deity.
“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," it said.
Parliament has transgressed its legislative power in barring remedy of judicial review which is the basic feature of the Constitution, the plea claimed.
The Hindu body has also sought a direction for restoration of all proceedings which have abated by operation of Section 4 of the Act.