Advocate Ashwini Upadhyay, who has challenged the Places of Worship Act of 1991, has moved the Supreme Court seeking to be made a party in the Gyanvapi case while arguing that a temple’s “religious character” does not change merely because it was demolished once upon a time.
Demolition of a temple’s roof, walls, pillars, foundation and even subsequent offerings of Namaz does not change the character of a land where once a temple stood, Mr. Upadhyay argued.
“After the Pran Pratishtha of idol, ‘A Temple is Always a Temple’ until the idol is shifted to another temple with the rituals of Visarjan,” Mr. Upadhyay argued in his application.
He said a mosque constructed on temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity’s property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property.
The right restore religious property is “unfettered”, he argued referring to the restraints under the 1991 Act. He said the is a “continuing wrong” and the injury must be “cured” by judicial remedy. He argued that the religious character of a mosque and a temple are “totally different.
“Mosque is simply a place of prayer and that is why, in the Gulf countries (birthplace of Islam), it is demolished/shifted even for making road, school, hospital and public office... The 1991 Act cannot be applied on mosque,” the application argued.
The 1991 Act, he claimed, was enacted in the garb of ‘public order’, which is a State subject [Schedule-7, List-II, Entry-1] and ‘places of pilgrimages within India’ is also State subject [Schedule-7, List-II, Entry-7]. The Centre could not have enacted the 1991 Act.
“Moreover, Article 13(2) of the Constitution prohibits State to make law to take away fundamental rights, but 1991 Act takes away the rights of Hindus, Jains, Buddhists and Sikhs to restore their ‘places of worship and pilgrimages’, destroyed by barbaric invaders,” Mr. Upadhyay argues stridently.
