Waqf act challenged: Religion should not be brought in while questioning a law

Published on Sep 20, 2022 12:04 AM IST

Stating that the law is regulatory in nature, the Supreme Court observed that if the Waqf Act is struck down, it will only benefit the encroachers

The Supreme Court expressed “shock” over arguments made in a petition challenging the constitutional validity of the Waqf Act (HT File)
The Supreme Court expressed “shock” over arguments made in a petition challenging the constitutional validity of the Waqf Act (HT File)
ByAbraham Thomas, New Delhi

The Supreme Court on Monday expressed “shock” and “pain” over arguments made in a petition challenging the constitutional validity of the Waqf Act for allegedly being discriminatory and noted that religion should not be brought in while questioning a law.

Stating that the law is regulatory in nature, the apex court observed that if the Waqf Act is struck down, it will only benefit the encroachers. The petition objected to certain provisions of the Waqf Act that allow only Muslims to be members of Waqf Boards.

The Waqf Act regulates Islamic religious and charity properties; the Waqf Board administers them.

“I feel pained that you can put your challenge down to religion,” said a bench headed by Justice KM Joseph. “We should go beyond that and certainly not bring religion as a ground to strike down the law.”

The Waqf Act, introduced in 1954, was enacted with the purpose of regulating and declaring Waqf properties. In 1995, the law was modified to allow formation of Waqf Boards in each state and Union territory comprising of members who are Muslims. Besides, the Act also provided for tribunals headed by a judicial officer drawn from the state service and two other members (not necessarily Muslims) who are to decide disputes related to Waqf properties.

The petition, filed by Bharatiya Janata Party (BJP) leader and lawyer Ashwini Kumar Upadhyay, argued that there is no similar arrangement for Hindu properties. It has been a long-standing grievance of several Hindu groups that while Waqf Boards control Islamic religious properties, Hindu temples come under the purview of state governments.

Taking on the argument, the bench also comprising Justice Hrishikesh Roy said: “We express our complete shock. If you have a judicial tribunal and if a judicial member is appointed, that man will decide on the basis of religion?”

“How do you bring in religion and discrimination in such matters?” the bench asked senior advocate Ranjit Kumar, appearing for Upadhyay.

The petition further stated that tribunals and boards under such enactment should be religion-neutral and gender-neutral or else such law face the risk of being unconstitutional for violating the equality principle laid down under Article 14 (right to equality) and Article 15 (right against non-discrimination).

To this the bench said, “Find out one provision in the Waqf Act which is against equality.”

The court said it has prepared a list of laws governing Hindu religious institutions and endowments, where it was specifically provided that the members of the boards or tribunals under the respective acts will be Hindus. Referring to such laws prevailing in Odisha, Tamil Nadu, Karnataka, Himachal Pradesh, Andhra Pradesh, and Kerala, the bench said, “In all these Acts, a person to be a member of the board has to be of Hindu religion.”

The court said it was bound to undertake this research as there was some wrong reporting in sections of media. “We were a little baffled by the kind of talk going on in some sections of media based on misapprehensions,” the bench said. “We don’t look at the religion of any person manning these quasi-judicial authorities.”

Senior advocate Kumar sought two weeks to go through the state-specific laws applicable to Hindus. The court posted the matter for hearing on October 10.

Kumar told the court that the petition has questioned why there is no single law regulating Hindu religious property vis-à-vis the Waqf Act. He cited the examples of The Religious Endowment Act, 1863; Indian Trustees Act, 1866; Indian Trust Act, 1882; Charitable Endowment Act, 1890; Official Trustees Act, 1913; and Charitable & Religious Act, 1990 that are made to manage trusts and religious endowments of all communities, except Muslims.

The court, however, told Kumar: “If your argument is accepted to strike down the law, one who has the last laugh will be the encroachers.”

“The Waqf Board is a statutory board which is not the owner of Waqf property but regulates it,” the bench added.

It was pointed out to the court that a similar petition filed by Upadhyay to quash Waqf Act is pending consideration before the Delhi high court. The petitioner further informed the court that a similar petition is ready to be filed in the Allahabad high court. Since there are multiple proceedings arising in two high courts, Kumar requested the top court to consider transferring the matters to the top court and decide the issue of validity.

Kumar referred to another batch of matters pending in the top court where the issue of whether any charitable trust established by Muslim would necessarily be called Waqf property has been raised. The bench distinguished this matter from Upadhyay’s petition, saying: “In those petitions, there is no challenge to Waqf Act but to a notification issued by Waqf Board.”

Advocate MR Shamshad, lawyer for Moulana Mahmood Madani of Jamiat Ulema i Hind, informed the court that Upadhyay moved a similar petition challenging Waqf Act before the top court earlier this year. As the court was not inclined, he withdrew the petition in April and approached the Delhi high court.

In the petition before the high court, Upadhyay said if the Waqf Act is enacted to secure fundamental right to practice religion guaranteed under Articles 25 and 26, it must be in consonance with Articles 14 and 15 and should cover all minorities.

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