Waqf law challenge: SC gives govt week to respond before any order is passed
The Supreme Court adjourned until May the hearing on the petitions challenging the constitutional validity of the amended law for regulating and managing Islamic charitable endowments
The government on Thursday assured the Supreme Court that no appointments shall be made to the Central Waqf Council or waqf boards and no waqfs, including “waqf-by-user” declared by notification or registered, shall be de-notified until the next hearing date in the first week of May on the petitions challenging the constitutional validity of the amended law for regulating and managing Islamic charitable endowments.
A bench of Chief Justice of India Sanjiv Khanna and justices Sanjay Kumar and KV Viswanathan recorded the assurance as it adjourned the hearing after the government sought a week to file a detailed response before any order staying the operation of the law, either directly or indirectly, is passed. The bench allowed the petitioners to file any response to the government’s affidavit.
Solicitor general Tushar Mehta submitted that this was not a case where a stay could be granted without hearing the government. He added that documents needed to be shown to explain how the amendments came to be introduced. “We received lakhs of letters from people who said their lands and villages were taken over as waqf. It affects a large number of people whose right to land and property is to be decided,” Mehta said. He said that any direction to stall the operation of the new law will be very harsh.
States supporting the new law supported Mehta’s submissions. Senior advocates Rakesh Dwivedi and Ranjit Kumar said that “heavens will not fall” if a week is granted to file a response. They also sought time to file affidavits.
The bench said that not all states were represented. It added that the respective state governments were to make the appointments to waqf boards.
Mehta said nothing can happen within a week, even if governments want to. Senior advocate Ravindra Srivastava, representing Chhattisgarh, pointed out that the state Waqf Board supports the state in implementing the new law.
The bench said the present law has many positive aspects. “But at the same time, we do not want the situation to change so drastically that it affects the petitioners.” The court added that the rule, while dealing with the validity of a law, is that they do not set it aside. “Another thumb rule is that the situation prevailing today should continue so that the right of persons is not affected.”
The government argued that the court must know the fallout of its order, for which it requested time to reply.
On Wednesday, the court questioned aspects of the new law, including the status of “waqf by user” properties declared so under earlier court orders, the majority presence of non-Muslim members in the Waqf Council and boards, and disallowing a property from operating as a waqf if it is disputed as a government plot.
The court said it was inclined to pass an interim order pausing the operation of the law on these aspects, but agreed to give the Union government and states an opportunity to argue on Thursday.
The court cited the apprehensions of the petitioners, including members of Parliament, Muslim scholars, religious bodies, and political parties, that the law breached the Constitution’s articles 25 and 26 related to the fundamental right to freedom of religion.
The bench said that when a legislation is passed, courts generally do not interfere, but if a property declared as “waqf by the user” is denotified, it can have huge consequences.
A waqf is a Muslim religious endowment, usually in the form of landed property, for charity and community welfare. The new law implemented major changes in the regulation and governance of India’s waqf boards, scrapping the “waqf by user” provision, where a property is acknowledged as waqf because it has been used for religious activities for some time, despite there being no official declaration or registration. It provided for government officials to be members of waqf bodies.
The amended law gives overriding power to senior officials to determine if a government property belongs to a waqf. It allows only a person “showing or demonstrating that he is practising Islam for at least five years” to donate properties to waqf.
The court on Wednesday referred to properties declared waqf centuries ago, and which continued to remain so by user until the law came into effect. It underlined that the past cannot be rewritten. “A property declared as waqf some 100 or 200 years ago, suddenly you turn around and say it cannot be waqf.” The court said it would be difficult to register properties built several centuries ago.
The court said waqf property may have been constructed in the 14th or 15th century. “Before the British came, we did not have any Registration Act. To now require them to produce a registration deed will not be possible.”
It pointed out cases where court orders have recognised, identified, and established properties as waqf. The court raised concerns over these classes of properties, which may now become void by operation of the law. “The legislature cannot declare a decree or order of court as void. What it can do is to remove the basis of law that served as the basis for passing the decree...There is an issue of concern.”
