“As the matter is sub judice before this court, we deem it fit to direct that no fresh suits shall be registered or proceedings be ordered. In the pending suits, courts would not pass any effective orders or final orders,” a three-judge Special Bench led by Chief Justice of India Sanjiv Khanna said.
“When a matter is pending before us, is it just and fair for any other court to examine it?” asked the Bench – which also included Justice PV Sanjay Kumar and Justice KV Viswanathan.
Amid repeated interjections by senior lawyers representing various parties for and against the Act, the Bench clarified that it was examining the validity as well as ambit of the 1991 law.
“The matter is sub judice. No further suits can be registered till we hear and dispose of the case,” the top court emphasised.
“When the Supreme Court has laid down the law in a five-judge Bench composition, then lower courts can’t wrestle it out with the Supreme Court. That is why proceedings need to be stayed,” it said.
The top court’s order means that in pending suits regarding Kashi Vishwanath-Gyanvapi mosque dispute, Krishna Janmabhoomi-Shahi Idgah dispute at Mathura, Sambhal Jama Masjid, Bhojshala and Ajmer Sharif dargah disputes, courts cannot pass any effective ior final orders, including those for survey.
The Bench asked the Centre and other respondents to file their replies in four weeks.
It also appointed three nodal counsel — Ejaz Maqbool for parties seeking enforcement of the Act and Kanu Agrawal for the Centre and Vishnu Jain for petitioners against the 1991 law.
Enacted by Parliament during the PV Narasimha Rao government, the 1991 Act prohibits conversion of any place of worship, except the Ram Janmabhoomi-Babri Masjid at Ayodhya, and freezes the religious character of any place of worship as it existed on August 15, 1947.
There are six petitions, including those filed by advocate Ashwini Kumar Upadhyay and former Rajya Sabha MP Subramanian Swamy, against certain provisions of the law. Some of the petitions have been pending since 2020.
The petitioners against the 1991 Act alleged that it created an “arbitrary and irrational retrospective cut-off date” of August 15, 1947 for maintaining the character of the places of worship or pilgrimage against encroachments done by “fundamentalist-barbaric invaders and law-breakers”.
The top court had on January 9, 2023, sought responses of the Centre on pending pleas challenging certain provisions of the 1991 Act which took away the right of judicial remedy to reclaim a place of worship of any person or a religious group.
The hearing assumes significance in view of the fact that there are several mosques and dargahs which Hindu groups have sought to reclaim on the grounds that they were built on pre-existing temples.
Several politicians, including CPI(M) leader Prakash Karat and RJD MP Manoj Jha, have moved the Supreme Court in support of the Act. On Thursday, the top court allowed the impleadment applications.
Tinkering with the Act would harm India’s communal harmony and secular fabric,” Karat submitted, while Jha said the Act highlighted the obligations of a secular state and that there was no need for the top court to declare it unconstitutional.
NCP (Sharad Pawar) MLA Jitendra Satish Awhad and the Indian Union Muslim League leaders PK Kunhalikutty and ET Muhammed Basheer, too, have urged the top court to hear the party before taking a call on the validity of the Act.
In June 2022, the Jamiat Ulama-i-Hind moved the Supreme Court seeking dismissal of petitions challenging the validity of the Act, saying it would open floodgates of litigation against countless mosques across India.
The Gyanvapi mosque management committee, too, has moved the Supreme Court to oppose petitions challenging the validity of the Act, saying historical wrongs or perceived injustices of the past should not undermine the principles of secularism and non-retrogression upheld by the Act.
