NEWS  Enactment of the Places of Worship Act, 1991 in its current format damages the liberty of belief, faith and worship to all.

CONTEXT Recently Places of Worship Act, 1991 has been in the news because of the ongoing petition in the Supreme court. The act was enacted to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947. Although the act was appreciated by one section, others feel that it is colourable legislation as Enactment of the Places of Worship Act, 1991 in its current format damages the liberty of belief, faith and worship to all.

WHY THE ACT IS A COLOURABLE LEGISLATION ?

• A public interest litigation (PIL) has been filed in the Supreme Court which challenges Sections 3 and 4 of the Places of Worship Act, 1991 being unconstitutional, void ab initio, and against the Basic Structure of the Constitution of India.
• The pith and substance of the Act of 1991 is that it ultra vires the fundamental rights enshrined in the Constitution. This is because the act bars the jurisdiction of the Supreme Court and furthermore nullifies the Fundamental Right(s) guaranteed by the Constitution of India as elucidated in Article 32 of “enforcement of fundamental rights”.  
• As per B.R. Ambedkar Article 32 is the most important and very soul of the Constitution. It empowers the Supreme Court with the power to issue writs appropriate for enforcement of all the Fundamental rights conferred by Part III of the Constitution.
• The power of judicial review is an integral part of the basic structure of the Constitution. No Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights (which include freedom of religion).
• Preamble in the Constitution gives prominent importance to liberty of belief, faith and worship to all citizens.  This is weakened and effectively nullified or severely damaged by the enactment of the Act of 1991 in its current form.
• The exclusion of the Mathura and Varanasi disputes as being additional exceptions from the Act of 1991 is wholly unacceptable and against what is given by the people of India to the makers of the Constitution.
• Section 4 (1) of the Act declaring that religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day, is no longer good law after the Court’s judgment in 1994 which held that a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in the open maidan, on the road, railway platforms or airports.
• Hence Act of 1991 is an Act of colourable legislation as it is trying to do something indirectly which can’t be done directly.

WAY FORWARD

Concepts of faith, belief and worship are the foundations of Articles 25 and 26 of the Constitution. Prohibiting citizens from approaching appropriate courts to handover the land of any temple of certain essential significance is arbitrary, unreasonable and mala fide. Hence, by the doctrine of casus omissus, the Supreme Court in an appropriate case before it can order a number of exceptions in Section 5 of the Places of Worship Act, 1991. The Supreme Court under Article 142 of the Constitution can pass any order to carry out for doing complete justice being in the public interest, while upholding the Constitution of India.

Reference:

1. https://www.thehindu.com/opinion/op-ed/an-act-of-colourable-legislation/article34218227.ece