Mandir demand and the law

Mandir demand and the law

News:

Religious dominated group in Ayodhya demanding legislation to allow building Ram temple in Ayodhya

Important Facts:

• Over the last several days, few religious dominated group have been demanding a law that would allow construction of a Ram temple in Ayodhya.
• In this regards, SC in 1994 ruling observed, that “a mosque is not an essential part of the practice of the religion of Islam and namaz by Muslims can be offered anywhere, even in open”
• However recently, the last CJI of India, has set the stage for further resumption of hearing on the title suit over the site in Ayodhya

Scope of Government and Supreme Court intended to supersede ongoing legal proceedings.

• The Seventh Schedule of the Constitution lists 100 items on which Parliament has the exclusive right to legislate; additionally, Parliament can legislate on 52 items under the Concurrent List.
• The Seventh Schedule also makes it clear that Parliament can legislate on “any other matter not enumerated” in List II (State List) or List III (Concurrent List).
• Parliament has complete authority to legislate on matters relating to “acquisition and requisitioning of property
• Parliament can frame a law even if the matter is pending in court.
• However, the Constitution allows the judiciary to adjudicate upon the constitutional validity of all laws.
• If Government plan to bring a law, it would be as an ordinary Bill that would require a simple majority in both Houses.
• The Supreme Court has, however, already laid down that any move towards abatement of pending suits would be unconstitutional.

Precedent of such executive or legislative action

• There have been instances when the government has introduced ordinances, later ratified by Parliament, on matters that were subjudice. For instance, Parliament passed a Bill in August this year to overturn a Supreme Court order concerning safeguards against arrest under the SC & ST (Prevention of Atrocities) Act
• The ordinance was introduced even as the court was hearing a review petition filed against the order
• Acquisition of Certain Area at Ayodhya Ordinance, 1993; the Act was effectively rendered inactive in 2010 when the Allahabad High Court delivered its verdict on the title suit dividing 2.77 acres’ land among three parties.

Question of the primacy of legislature over judiciary:

• The government has wide powers to frame a law including building a temple on disputed land. But on the other, the Supreme Court also has the power to review whether the law is legal under the Constitution.
• The judiciary has asserted earlier that clearing the way to settle a dispute cannot be asserted in such a way that it favors one party over another.
• For instance, Constitution Bench in 1991 concerning the Cauvery Water Disputes Tribunal, asserted that legislature can change the basis on which a decision is given by the Court and thus change the law in general which will affect a class of persons and events at large.
• Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal” — which is not allowed under the constitutional division of powers.