An Act of Colourable Legislation

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

A glance at other relevant doctrines:

• Doctrine of colourable legislation: What cannot be done directly cannot be done indirectly.
  • E.g. If legislature tries to legislate upon such subject matter, which is outside scope of its power, and it does so indirectly so that it does not look like that it has legislated upon a law outside of its scope;
• Doctrine of pith and substance: Means “true nature and character” of an act to be ascertained when it’s legality is in question and not the incidental features.
• Doctrine of cause omissus: A situation not provided for by a statute and therefore governed by case-law or new-judge made law.

Why the Places of Worship Act, 1991, demands a re-look?

• Presence of exceptions: Section 5 of the act states, nothing in the Act shall apply to Ram-Janmabhoomi-Babri Masjid situated in Ayodhya; this stimulates the need for more such exceptions.
• Ultra vires to the Fundamental Rights: Since it bars the jurisdiction of the Supreme Court and nullifies Article 32.
  • Under Article 32 of the Constitution of India, the Supreme Court has the power to issue writs appropriate for enforcement of all the Fundamental rights conferred by Part III of the Constitution.
  • Thus, it has acted as colourable legislation.
  • Its violated rights under Article 25 and 26 – to provide the liberty of belief, faith and worship to all citizens- by restricting citizens to reach courts with respect to suits related to places of worship - Weakening constitutional morality
• Controversy over the definition of ‘Places of worship’:
  • Ismail Faruqui vs Union of India case enunciated that – a mosque is not an essential part of the practice of the religion of Islam, and namaz can be offered anywhere.
• Judicious balancing: Of the 40,000 temples which were demolished on the firmans of the Mughal emperors, only two are being demanded a re-build - The Gyanvapi Kashi Vishwanath Temple in Varanasi and the Krishna Janmabhoomi Temple in Mathura.
• Judicial viability:
  • By the doctrine of casus omissus, the Supreme Court can in an appropriate case before it order that the number of exceptions in Section 5 of the Places of Worship Act, 1991.
  • Supreme Court, under Article 142, can pass any order to carry out for doing complete justice being in the public interest while upholding the Constitution of India.