The Supreme Court’s interim order barring civil courts from hearing suits related to places of worship has reignited debate over the Places of Worship Act, 1991

A special bench of the Supreme Court led by CJI Sanjiv Khanna, on December 12, 2024, had barred all the civil courts from entertaining any fresh or pending suits related to the places of worship, in effect, validating the Act for an interim period, even before hearing the constitutional challenge to it.

The Places of Worship Act was enacted to serve as a legislative firewall against religious disputes over the places of worship. It seeks to bar conversion of places of worship and freezes their religious character as they existed on August 15, 1947, with an exception for the Ram Janmabhoomi-Babri Masjid dispute.

Judicial Review and the Rule of Law

The abatement of suits and other legal proceedings in relation to the places of worship, as sought to be done through Parliament by a legislative fiat in 1991, goes contrary to the basic feature of the rule of law and judicial review as held in Indira Gandhi vs Raj Narain, among others. In India, and other parliamentary democracies, the view of the Parliament, served through its members, often portrayed as an eternal “will of the people,” free from all fetters, is misplaced: it is not only anathema to democratic and constitutional thoughts of our republic but also problematic in its philosophical underpinnings from where it stems out.

The Parliament’s act of granting immunity to certain legal disputes is based on a fallacious hypothesis that Parliament is a symbol of the continuous ‘will of the people’ and, consequently, not answerable to the courts. However, the Indian constitution establishes the principle of constitutional supremacy, as opposed to unchecked parliamentary sovereignty, which ensures that even parliamentary legislation, though reflecting the will of the people, is subject to judicial review. This is traceable from Article 13(2), which reinforces that parliamentary laws cannot override the fundamental rights guaranteed by the Constitution and remain subject to constitutional constraints and judicial scrutiny. Hence, an act passed by the Parliament—the Places of Worship Act, in this case—cannot annihilate the fundamental right of freedom of worship enshrined under Articles 25 and 26, as well as the text of the Preamble.

Treating equals as unequal

The Places of Worship Act, nevertheless, made its effect inapplicable to the hitherto Ram Janma Bhumi-Babri Masjid dispute, by way of Section 5, acknowledging its special significance emanating from being present at a particular site while excluding other similarly placed temples, viz Kashi Vishwanath and Krishna Janma Bhumi, also derive their significance from being located at specific sites/places.

In this manner, the Act has created an unreasonable and arbitrary classification against Article 14 of the Constitution by treating Ram Janma Bhumi as a separate class in itself. The Supreme Court in Royappa has held that “equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.

Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and therefore violative of Article 14.” In addition, under the two-pronged Article 14 test, first settled by the Supreme Court in Anwar Ali Sarkar, any legislative classification that provides advantages and disadvantages on a differential ground will be declared as unconstitutional:

(a) if there is no intelligible differentia between the classification made, which distinguishes those that are grouped from those that have been excluded;

(b) if that differentia does not have a rational relation to the object sought to be achieved by the statute in question.

The classification made under the Act is unconstitutional for two primary reasons:

First, the exemption accorded to Ram Janma Bhumi presumes the rights of the parties attached to the Ayodhya dispute to be more equal and holier than the rights of similarly placed parties about the other two religious sites (Kashi & Mathura); secondly, the classification is devoid of any factual basis and based on a premise that abatement of legal proceedings for reclamation of religious sites other than Ram Janma Bhumi will ease communal tensions in the country.

Even assuming so, a routine law and order situation cannot be the basis for the suspension of a constitutional right. The unreasonable classification carved out by the Act and placing a bar on parties attached to disputes concerning places of worship from knocking on the court’s door warrant serious re-evaluation. 

The door of the courts, in a functioning democracy, based on a written constitution, must always be ajar to the victims of wrongdoings.

Having said that, invalidating the entire Act, at this stage, may not be the most pragmatic course of action. In that case, following the terms of “ut res magis valeat quam pereat” (it is better for a thing to have an effect than to be void), a more measured approach would entail reading down the Act to extend the benefit of Section 5 [exemption from the Act, as done with Ram Janma Bhumi] to two other similarly placed temples (Kashi & Mathura), rather than invalidating it entirely.

(The author is a practising advocate in Delhi, with inputs from Vaidushya Parth; views are personal)