 "Supreme Court, Benami Act")
The Supreme Court is likely to hear on Monday a batch of PILs challenging the validity of certain provisions of a 1991 law which prohibit filing of a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on August 15, 1947.
A bench of Chief Justice DY Chandrachud and Justice PS Narasimha has listed as many as six petitions, including those filed by former Rajya Sabha MP Subramanian Swamy, against the provisions of the law.
On November 14 last year, Solicitor General Tushar Mehta, appearing for the Centre, had said that a comprehensive affidavit will be filed by the Union government dealing with various facets of the case and sought some more time to ensure that the affidavit is filed after due deliberation at various levels of the government.
On the request so made, we direct that the counter affidavit be filed on or before 12 December 2022. A copy of the counter affidavit shall be circulated to the counsel for the petitioners and intervenors in all the companion matters. List the Petitions on 9 January 2023, the bench had ordered on the last date of hearing.
The top court was hearing the pleas including the one filed by advocate Ashwini Upadhyay who has said sections 2, 3, 4 of the Places of Worship (Special Provisions) Act, 1991 be set aside on grounds including that these provisions take away the right of judicial remedy to reclaim a place of worship of any person or a religious group.
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While hearing the matter on September 9, the apex court had said the pleas challenging the validity of certain provisions of the 1991 law can be referred to a five-judge Constitution bench for adjudication and asked the Centre to file a reply.
While BJP leader and former Rajya Sabha MP Subramanian Swamy wanted the apex court to "read down" certain provisions to enable Hindus to stake claim over mosques at Gyanvapi in Varanasi and Mathura respectively, Upadhyay claimed the entire statute was unconstitutional and hence no question of reading down arises.
The doctrine of reading down a law in generally used to save a statute from being struck down on account of its unconstitutionality.
On the other hand, Jamiat Ulama-i-Hind, represented by advocate Ejaz Maqbool, had referred to the five-judge Constitution bench judgement in the Ram Janmabhoomi-Babri Masjid title case and said the 1991 law has been referred to there and it cannot be set aside now.
The top court had on March 12 last year sought the Centre's response to the plea filed by Upadhyay challenging the validity of certain provisions of the law which provide for maintaining status quo on the ownership and character of religious places as prevailing on August 15, 1947.
The petition alleged that the 1991 law creates an "arbitrary and irrational retrospective cut-off date" of August 15, 1947 for maintaining the character of the places of worship or pilgrimage against encroachment done by "fundamentalist-barbaric invaders and law-breakers".
The 1991 provision is an Act 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 August 15, 1947 and for matters connected therewith or incidental thereto.
The law had made only one exception -- on the dispute pertaining to the Ram Janmabhoomi-Babri masjid in Ayodhya.
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