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An Act of Colourable Legislation

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An Act of Colourable Legislation An Act of colourable legislation Enactment of the Places of Worship Act, 1991 in its current format damages the liberty of belief, faith and worship to all any suit, appeal or other proceed- trary, unreasonable and mala fide day, is no longer good law after ings relating to the said place or in the context of the fundamental this Court’s judgment in ((1994) 6 place of worship, i.e. the Ram-Jan- rights to pray and perform reli- SCC 360) which held that a mos- mabhoomi-Babri Masjid situated gious practice as guaranteed by que is not an essential part of the in Ayodhya, in the State of Uttar Articles 25 and 26 of the Constitu- practice of the religion of Islam Pradesh. Thereby, the 2019 judg- tion of India. The intent of the Act and namaz (prayer) by Muslims Subramanian Swamy & ment of the Supreme Court’s (Shri of 1991 under Section 5, i.e. excep- can be offered anywhere, even in Satya Sabharwal Ram Janmabhoomi dispute (2020 tion extended to the “Ram-Janmb- the open maidan, on the road, rail- 1 SCC 1)) observation(s) with res- GETTY IMAGES/ISTOCKPHOTO hoomi matter” identifies the need way platforms or airports. pect to the Places of Worship Act, power of judicial review being an and importance of resolution of Ultimately, students of law are n his article, “The needless re- 1991 lacks any precedential value. integral part of the basic structure such a controversy and settling also students of history and we surrection of a buried issue” The pith and substance of the of the Constitution, no Act of Par- long on-going disputes before the must not lose sight of the past. We I(The Hindu, March 29, 2021), Act of 1991 is that it is ultra vires the liament can exclude or curtail the courts. But such an exception must learn from it. But we accept Dushyant Dave, senior advocate of fundamental rights enshrined in powers of the Constitutional should be made for other two mat- one sentiment of Mr. Dave — that eminence, has articulated why he the Constitution since it bars the Courts with regard to the enforce- ters of dispute stated above. we cannot open the flood gates of opposes the challenges on consti- jurisdiction of the Supreme Court ment of fundamental rights”. rebuilding all 40,000 temples tutional grounds to the Places of and furthermore nullifies the Fun- The Act of 1991, is appropriately Other disputes which were demolished on fir- Worship Act, 1991, now before the damental Right(s) guaranteed by called an Act of colourable legisla- The exclusion of the Mathura and mans of the Mughal emperors. Supreme Court. the Constitution of India as eluci- tion. As the Courts have held, “you Varanasi disputes as being addi- Yet, where by faith Hindus be- We have by way of a public in- dated in Article 32 of “enforce- cannot do indirectly which you are tional exceptions from the Act of lieve there was a forcible demoli- terest litigation (PIL) in the Su- ment of fundamental rights” prohibited from doing directly”. 1991 is wholly unacceptable and tion of an irreplaceable non-shifta- preme Court (WP(C) 619 of 2020, which cannot be suspended ex- against what is given by the people ble temple, it has to be rebuilt. which was filed earlier but notice cept as otherwise stated in the A weakening of India to the makers of the Con- There are only two more such was issued later vide order of the Constitution. The Preamble in the Constitution stitution, enshrined in the Pream- temples in the list of 40,000 — the Supreme Court dated March 26, This importance of Article 32 gives prominent importance to li- ble, which is part of the Basic Gyanvapi Kashi Vishwanath Tem- 2021), challenged Sections 3 and 4 can be understood by the words of berty of belief, faith and worship Structure of the Constitution. ple in Varanasi and the Krishna of the Places of Worship Act, 1991 the Chairman of the Constitution to all citizens, and the same is Those who rely on the Act of Janmabhoomi Temple in Mathura. being unconstitutional, void ab in- Drafting Committee, B.R. Ambed- sought to be weakened and effec- 1991 to avoid the settlement of the Hence, by the doctrine of casus itio, and against the Basic Struc- kar who asserted, inter alia, that tively nullified or severely dam- dispute in Varanasi Mathura have omissus, the Supreme Court can in ture of the Constitution of India. Article 32 is the very soul of the aged by the enactment of the Act failed to anticipate the legal princi- an appropriate case before it order Constitution and the most impor- of 1991 in its current format. ples enunciated in the judgment of that the number of exceptions in No precedential value tant Article in the Constitution. The concepts of faith, belief and the top court (in Ismail Faruqui vs. Section 5 of the Places of Worship Mr. Dave has relied mainly on the Under Article 32 of the Constitu- worship are the foundations of Ar- Union of India (1994 6 SCC 360)), Act, 1991, be three as an alternative Supreme Court’s observation in tion of India, the Supreme Court ticles 25 and 26 of the Constitution on the religious significance of solution. The Supreme Court un- the Ram Janmabhoomi Case of No- has the power to issue writs appro- of India. Therefore, prohibiting ci- mosques and temples. Even in der Article 142 of the Constitution vember 9, 2019 (M. Siddiq vs. Ma- priate for enforcement of all the tizens from approaching appro- countries like Saudia Arabia, only can pass any order to carry out for hant Suresh Das) with respect to Fundamental rights conferred by priate courts with respect to suit Mecca and Medina have the im- doing complete justice being in the Places of Worship Act, 1991. Part III of the Constitution. or any other proceedings to han- mutable religious protection from the public interest, while uphold- However, there was no application The top court, on various in- dover the land of any temple of demolition. And only authorised ing the Constitution of India. of the provisions of the Places of stances, ruled that in view of the certain essential significance (such demolition is permitted. Worship Act, 1991 to the case (Shri constitutional scheme and the ju- as being the birthplace of Lord Ra- Section 4 (1) of the Act declaring Dr. Subramanian Swamy is a Member of Ram Janmabhoomi dispute). risdiction conferred on the Su- ma in Ayodhya and Lord Krishna that religious character of a place Parliament and former Union Minister for Section 5 of the Places of Wor- preme Court under Article 32 and in Mathura or Lord Shiva sending of worship existing on the 15th day Law and Justice. Satya Sabharwal is an ship Act, 1991 clearly states that on the High Courts under Article his fiery Jyotirlinga in the Gyanva- of August, 1947 shall continue to advocate practising before the Supreme nothing in the Act shall apply to 226 of the Constitution that “the pi premises of Varanasi), is arbi- be the same as it existed on that Court and High Courts.
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