Kashi Vishwanath Temple
Kashi Vishwanath Temple
Litigation News

Right to challenge encroachment of Hindu property by another faith barred: Plea filed in Supreme Court challenging S.4 Places of Worship Act

Shruti Mahajan

A petition has been filed in the Supreme Court challenging the vires of Section 4 of the Places of Worship Act, 1991 as being violative of the principles of secularism.

The petitioners, who are followers of the Hindu faith, have moved the Supreme Court claiming that the provision is in violation of Articles 14, 15, 25, 26 and 29(1) of the Constitution of India.

Under this provision, the religious character of a place of worship will continue as it existed on August 15, 1947.

Section 4 of the Places of Worship Act, 1991
Section 4 of the Places of Worship Act, 1991

Further, Section 4(2) goes on to say that if any litigation with respect to a place of worship existed prior to the commencement of the Act which came into force in 1991, such litigation would stand abated after the coming into force of the Act.

Terming Section 4 as being against the principles of secularism, the petitioners have prayed for the same to be struck down.

It is claimed that the provision bars the right to remedy of Hindu devotees to challenge the "encroachment made on Hindu religious properties" made by followers of other faiths prior to the enforcement of the Act. The plea says,

"The result is that Hindu devotees cannot raise their grievance by instituting any suit in Civil Court or invoking the jurisdiction of the Hon’ble High Court under Article 226 of the Constitution of India against 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 15th August 1947 and such illegal and barbarian act will continue in perpetuity."

It is highlighted that legal remedies through courts has been barred by Parliament through this Act, rendering the provision "per se unconstitutional". Further, the provision could not have been given a retrospective effect, it is argued.

"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."
the petition states.

It is also averred that the maxim "ubi jus ibi remedium" stands frustrated when Parliament does away with the role of courts and consequently infringes the right to religion guaranteed under Articles 25 and 26.

The law and the provisions under question "destroy" the Hindu law as is coded and enshrined under the Vedas, Shastras, and other religious scriptures, it is contended. Parliament cannot restrain Hindu devotees to return to their places of worship through a judicial process against "encroachment" over such structures, the plea contends.

The petition is filed by the Vishwa Bhadra Pujari Purohit Mahasangh through Advocate Vishnu Shankar Jain.

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