Places of Worship Act in Light of Right to Freedom of Religion

By Tashmayee Sarkhel

Published on: 03 August 2022 at 22:34 IST

This article features the detailing of the case where a Public Interest Litigation (PIL)^[1] has been filed by the former member of Parliament Chintamani Malviya to the Supreme Court contesting the Places of Worship (Special Provisions) Act, 1991^[2], and a brief about the article.

According to the PIL submitted by former MP Chintamani Malviya, the Places of Worship Act denies Hindus, Jains, Buddhists, and Sikhs the ability to rebuild “places of worship and pilgrimages” that had been destroyed by barbarous invaders.

In India, Articles 25 to 28^[3] of the Indian Constitution provide the basic right to freedom of religion. The preamble of the Indian constitution was changed in 1976 to say that India is a secular state, marking the creation of modern India. The Supreme Court of India concluded that India was already a secular state when its constitution was formed. What this amendment truly accomplished was to state directly what had previously been stated implicitly in Articles 25 to 28.

Article 26:

Every religious group or division of a religious sect has the following rights under Article 26^[4] (subject to public order, morality, and health):

• creating and maintaining institutions for philanthropic and religious reasons;
• managing its relationship with religion;
• possessing and gaining real estate, both mobile and immovable;
• following the law when managing the property.

Azeez Basha Vs. Union of India^[5] – The Aligarh Muslim University Act, 1920^[6] in this case, underwent several changes between 1951 and 1965. The petitioner argued against these revisions because: they violate the basic freedom to organize and manage educational institutions under Article 30^[7]; the Muslim minority’s rights as outlined in Articles 25, 26, and 29 were infringed.

According to the Supreme Court, there was nothing that could have stopped Muslim minorities from founding institutions before 1920. The Aligarh Muslim Institution was founded by the law (Aligarh Muslim University Act, 1920), hence it is impossible to say that the university was founded by the Muslim Community because it was formed by the national law, not by the Muslim minority.

Saifuddin Saheb Vs. State of Bombay AIR 1962 SC 853^[8] – In this instance, the Bombay Prevention of Excommunication Act, 1949^[9], was passed by the State of Bombay. This Act’s Section 3^[10] forbade the ex-communication of any community’s members. The Act was challenged by the petitioner (religious leader of the Dawoodi-Bohra community) because it infringed upon their fundamental rights, which are protected by Articles 25 and 26.

The Court noted that the head’s ability to excommunicate people constituted one of the fundamental communal issues and that the Act blatantly violated the fundamental right guaranteed by Article 25(1)^[11] of the Constitution. The Act was declared invalid by the Supreme Court because it violated Articles 25 and 26.

Bira Kishore Dev Vs. the State of Orissa, AIR 1964 SC 1501^[12] – The Shri Jagannath Temple Act of 1954^[13] came into question in this case because it was deemed to be discriminatory and in violation of Article 26(d)^[14] of the Constitution. The petitioner (Raja of Puri) argued that the temple was his private property and that he had the exclusive right to its maintenance and supervision.

The Act transferred control of the temple’s sole management from the appellant to the Committee. The Supreme Court dismissed the appeal, concluding that the petitioner’s fundamental right to freedom of religion was not violated and that the Act primarily addressed the secular management of the school.

A religious group is allowed to manage its property, but only in line with the law, according to Article 26(d). In Durgah Committee Ajmer Vs. Syed Hussain Ali^[15], the Supreme Court noted that if a religious organization never had the authority to manage property or if it had that authority but lost it, the organization’s right could not be created under Article 26 and could not, therefore, be invoked.

In the case of the State of Rajasthan Vs. Sajjanlal Panjawat^[16], the Supreme Court made observed that although the state has the jurisdiction to manage or control trust properties, it cannot legally revoke that authority and transfer it to another body that does not even belong to the same denomination. This would undoubtedly be a breach of the Constitution’s Article 26(d).

Limitation of the Right – Article 26’s freedom to practice one’s religion is not unrestricted and absolute; it is subject to some restrictions. Religious practice cannot claim the protection of the state if it violates any aspect of public morals, health, or order.

MP Chintamani Malviya Case:

The Places of Worship Act, according to a PIL filed by a former member of parliament named Chintamani Malviya, denies Hindus, Jains, Buddhists, and Sikhs the ability to rebuild “places of worship and pilgrimages” that had been destroyed by barbarous invaders. Advocate Rakesh Mishra submitted the aforementioned PIL to the Supreme Court.

“It excludes the birthplace of Lord Rama but includes the birthplace of Lord Krishna, though both are the incarnation of Lord Vishnu, the creator and equally worshiped all over the world” PIL states.

The Places of Worship Act, according to the complaint, flagrantly violates the rights of Hindus, Jains, Buddhists, and Sikhs to govern, manage, and restore the “places of worship and pilgrimage” protected by Article 26 of the Indian Constitution. In the aforementioned PIL, the Ministries of Law and Justice, Home Affairs, and Culture have been designated as respondents.

The argument also raises the following legal issues:

• Does the Center have the authority to shut down Courts?
• Does the Center have the authority to forbid legal action against unauthorized encroachment on places of prayer and pilgrimage?
• Does the Centre have the authority to restrict the judicial remedies accessible to Hindus, Jains, Buddhists, and Sikhs who have been wronged by intruders and lawbreakers?
• Is Hindu law^[17] “law in force” in the sense of Article 372(1)^[18] after the Constitution came into effect?
• In article 13(2^[19]), are Sections 2, 3, and 4^[20] of the contested Act invalid and in violation of Articles 14, 15, 21, 25, 26, and 29^[21]?
• Is there any rule, regulation, or custom with the force of law that violates Articles 25–26 and is void under Article 13(1)^[22]?
• Whether an injunction under Article 13(1) rendered any unauthorized construction on religious sites before 15.8.1947 void and non-est?
• Considering that both Lord Ram and Lord Krishna are incarnations of Lord Vishnu, does it violate Article 14 to exclude Lord Ram’s birthplace and include Lord Krishna’s birthplace?
• Does the contested Act violate the secularism principle since it restricts the ability of Hindus, Jains, Buddhists, and Sikhs to have their sites of worship and pilgrimage restored by legal means?

According to the petitioner, the Places of Worship Act was passed under the guise of “public order,” which is a matter of state concern [Entry-1, List-II]. A state issue is “Pilgrimage, other than pilgrimages to sites outside India” (Entry-7, List-II). Therefore, the Centre is unable to pass the contested Act. Article 13(2)^[23] forbids the State from passing legislation that revokes the privileges granted by Part-III, yet the Act denies Hindus, Jains, Buddhists, and Sikhs the opportunity to rebuild the “places of religion and pilgrimage” that were obliterated by savage invaders.

Although both are manifestations of Lord Vishnu, the Creator, and are equally worshipped over the world, it eliminates the birthplace of Lord Rama but includes the birthplace of Lord Krishna, which is arbitrary, irrational, and violates Articles 14 and 15.

The rights to justice, legal remedies, and dignity are all fundamental components of Article 21, but the contested Act blatantly violates them. The Act willfully and flagrantly violates the rights of Hindus, Jains, Buddhists, and Sikhs to pray, profess, practice, and propagate their gions, as protected by Article 25. The Act flagrantly violates Article 26-guaranteed rights of Hindus, Jains, Buddhists, and Sikhs to repair, manage, and oversee “places of worship and pilgrimage.”

Adv. Ashwini Upadhyay was the first to challenge the Act, and notice was given on the petition in March 2021.

Conclusion:

In terms of religious diversity, India is the most varied nation. Being a secular nation, it does not have a state-sponsored religion, and each individual is free to select, practice, share, and even change their religion. However, the constitution imposes some limitations on these rights, thus they are not unqualified. No one is allowed to act in a way that violates state policy, causes unrest, or fosters intolerance among Indians in the name of their faith.

1. Public Interest Litigation ↑
2. Places of Worship (Special Provisions) Act, 1991 ↑
3. The Indian Constitution, a. 25-28 ↑
4. The Indian Constitution, a. 26 ↑
5. Azeez Basha Vs. Union of India ↑
6. The Aligarh Muslim University Act, 1920 ↑
7. The Indian Constitution, a. 30 ↑
8. Saifuddin Saheb Vs. State of Bombay, AIR 1962 SC 853 ↑
9. Bombay Prevention of Excommunication Act, 1949 ↑
10. Bombay Prevention of Excommunication Act, 1949, s. 3 ↑
11. The Indian Constitution, a. 25(1) ↑
12. Bira Kishore Dev Vs. the State of Orissa, AIR 1964 SC 1501 ↑
13. The Shri Jagannath Temple Act, 1954 ↑
14. The Indian Constitution, a. 26(d) ↑
15. Durgah Committee Ajmer Vs. Syed Hussain Ali ↑
16. State of Rajasthan Vs. Sajjanlal Panjawat ↑
17. Hindu Law ↑
18. The Indian Constitution, a. 372(1) ↑
19. The Indian Constitution, a. 13(2) ↑
20. The Indian Constitution, a. 26, sec. 2,3 and 4 ↑
21. The Indian Constitution, a. 14, 15, 21, 25, 26 and 29 ↑
22. The Indian Constitution, a. 13(1) ↑
23. The Indian Constitution, a. 13(2) ↑