"It is the duty of all these courts to save themselves from misuse and abuse of the process of law," Justice Govind Mathur, former Chief Justice of the Allahabad High Court, told The Quint.
His remark came in the backdrop of the barrage of 'temple/mosque' legal disputes, from the Gyanvapi mosque dispute in Varanasi to the dispute over Qutub Minar in Delhi, which appear to have taken over the courts of the country.
Justice Mathur further said, "The Supreme Court could have passed an appropriate order for not entertaining such petitions till they had a decision of the issue on the application of the Places of Worship Special Provisions Act (1991)."
The retired judge also pointed out that previously when the courts of the country were inundated with petitions related to entry tax matters, the Supreme Court had passed an order restraining different courts from entertaining such petitions till a definite decision was arrived at by the them.
On 20 May, the Supreme Court had directed that the Gyanvapi mosque case should be transferred from the civil judge in Varanasi, where it is currently being heard, to the court of the district judge Varanasi who is "more senior and experienced" and will be better placed to address the complex issues in the matter.
According to Justice Mathur, the present deluge of petitions are not bona fide litigation.
"It is a campaign. In 1992, it was an agitation and public movement but now this time the courts have been used for floating all these communal issues," he added.
What Is and Isn't Permissible Under the Places of Worship Act?
When asked about Supreme Court Justice DY Chandrachud's oral observation that the Places of Worship Act, 1991 does not create a bar on proceedings to assess the religious character of a particular place of worship, Justice Mathur said, "The observation made by Justice Chandrachud has not been taken into consideration in the right perspective."
"As a matter of fact every law is required to be applied in the given set of facts. If there would have been a dispute with regard to nature of a living temple or mosque that, as per existing rituals and existing mode of worship, whether this is a temple or mosque of x sect or y sect (it would have been permissible)."
He further explained,
"Just like there was a dispute of the Rishabhdeo temple in which the question was looking at the mode of worship – whether it was a Jain temple or a temple of the Adivasis. The court arrived at a decision that looking at all the rituals followed, it was a Jain temple. That was an absolutely different issue."
"Here as far as Gyanvapi is concerned, it is a matter in which the claim is that presently it is a mosque but centuries back it was a temple. This is not permissible under the act of 1991," Justice Mathur pointed out.
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