The Supreme Court recently issued notice on a PIL filed by BJP leader Subramanian Swamy challenging the Constitutional validity of the Places of Worship (Special Provisions) Act 1991.
The Places of Worship Act, 1991 prohibit conversion of any place of worship and provide for the maintenance of the religious character of any place of worship.
The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the fundamental values of the Constitution.
There are around 3.01 million that are places of worship, more than the number of schools and colleges (2.1 million). The data varies widely across states. In Himachal Pradesh, less than 50% of census houses are used for residential purposes. The share of census houses used as hotels, lodges, guest houses etc.
In M. Ismail Faruqui, the Supreme Court’s constitution bench struck down the Acquisition of Certain Area at Ayodhya Act, 1993, as being unconstitutional and also declined to answer a question put to it by the president of India on whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid in the area on which the structure stood.
In doing so, the bench also dealt with the relevance of the 1991 Places of Worship Act, 1991, even though there was no challenge before it.
The bench in Ismail Faruqui found that the 1993 Act and the president’s question (called a ‘reference’) favoured one religious community and disfavoured another.
The purpose of the reference is opposed to secularism and is unconstitutional, it held. Besides, the reference does not serve any constitutional purpose, the bench noted.
The doctrine of colourable legislation is based on the maxim that “what cannot be done directly cannot also be done indirectly”.
The doctrine becomes applicable when a legislature seeks to do something in an indirect manner when it cannot do it directly.
The government can enact a law within the power of the legislature. When the government enacts a law, It can hide a provision (illegal provision) within the provisions under the government’s legislative competence. This legislation is called Colourable Legislation.
The SC in the State of Bihar vs Kameshwar Singh case, used a doctrine of Colourable legislation. Under this, the court held that whatever is prohibited directly is prohibited indirectly also.
