Why the Places of Worship Act, 1991 has been challenged?

Synopsis: The enactment of the Places of worship act, 1991 is an act of colourable legislation. Further, it is against the liberty of belief, faith, and worship to all.

Background

• Sections 3 and 4 of the Places of Worship Act, 1991 has been challenged in the supreme court as being unconstitutional, void and against the Basic Structure of the Constitution of India.

What is Colourable Legislation?

The government can enact a law within the power of the legislature. When the government enacts a law, It can hide a provision (illegal provision) within the provisions under the government’s legislative competence. This legislation is called Colourable Legislation.

The SC in the State of Bihar vs Kameshwar Singh case, used a doctrine of Colourable legislation. Under this, the court held that whatever is prohibited directly is prohibited indirectly also. 

Why the Places of Worship Act, 1991 is said to be unconstitutional?

1. First, The Places of Worship Act, 1991 is against the fundamental rights enshrined in the Constitution. Because it restricts the jurisdiction of the Supreme Court. Also, it nullifies the Fundamental Right(s) guaranteed by the Constitution of India as per Article 32.
   • According to Ambedkar, Article 32 is the very soul of the Constitution. It states that “enforcement of fundamental rights” cannot be suspended except as stated in the Constitution.
   • Under Article 32 of the Constitution of India, the Supreme Court has the power to issue writs for enforcement of all the Fundamental Rights.
   • Also, the SC on several occasions ruled that no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights”.
   • Hence, the act is appropriately called an Act of colourable legislation. As it limits the powers of constitutional courts though there is no scope for such powers.
2. Second, the Places of Worship Act, 1991 is against the liberty of belief, faith, and worship to all citizens.
3. Freedom of religion is guaranteed to all citizens under Articles 25 and 26 of the Constitution.
4. It also includes Rights to pray and perform the religious practice. Therefore, prohibiting citizens from approaching appropriate courts with respect to handover the land of any temple of certain essential significance is arbitrary.

What is the way forward?

• The exclusion of the Mathura and Varanasi disputes as being additional exceptions from the Act of 1991 is unacceptable.
• The Act provides an exception to the “Ram-Janmbhoomi matter”. The need and importance of resolution of such a controversy.
• The Supreme Court can increase the number of exceptions in Section 5 of the Places of Worship Act, 1991, to three.
  • Including, the Gyanvapi Kashi Vishwanath Temple in Varanasi and the Krishna Janmabhoomi Temple in Mathura along with Ram-Janmbhoomi
  • It can be done through the use of the Supreme Court power under Article 142 of the Constitution.
• Under Article 142, the Supreme court can pass any order to carry out for doing complete justice being in the public interest, while upholding the Constitution of India.

Source: The Hindu