New Delhi: The Supreme Court on Monday said it was stunned and pained over a petition challenging the Waqf Act for being oppressive and permitting only Muslims to occupy Waqf Boards, saying that religion ought not to be brought into question a law.
The supreme court also saw that encroachers will get a free run of Waqf properties assuming the court were to strike down this regulation.
“I feel pained that you can put your challenge down to religion. We should go beyond that and certainly not bring religion as a ground to strike down the law,” a bench of justices KM Joseph and justice Hrishikesh Roy told the petitioner, BJP leader, and lawyer Ashwini Kumar Upadhayay.
The Waqf Act, introduced in the year 1954 was enacted to manage and declare Waqf properties. In 1995, the law was modified, and Waqf Boards were to be comprised in all states and union territories comprising of members who are Muslims. Furthermore, the Act also accommodated tribunals headed by a judicial officer drawn from the state administration and two other members (not necessarily Muslims) who are to decide disputes related to Waqf properties.
Ashwini Kumar Upadhyay’s petition argued that the Centre gave legislation exclusively manned by Muslims without giving any comparative plan for Hindu properties. The bench shot back: “We express our complete shock. If you have a judicial tribunal, will that man decide on basis of his religion? How do you bring in religion and discrimination in such matters?”
The petition additionally stated that tribunals and boards under such enactment ought to be religion-unbiased and gender-neutral or else such Acts face the risk of being unlawful for violating the equality principle set down under Article 14 (right to equality) and Article 15 (right against non-discrimination).
The bench said, “Find out one provision in the Waqf Act which is against equality.”
The bench, which was prepared with a list of laws governing Hindu religious institutions and endowments where only Hindus were permitted to be board and tribunal members under the law, countered the petitioner. Alluding to such laws 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 the media.
Senior advocate Ranjit Kumar appearing for Upadhyay said to the court that the petition has questioned why there is no single regulation of Hindu religious property versus the Waqf Act. He referred to 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 were enacted to manage trusts and religious endowments of all communities, except Muslims.
Further, the court said to 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.”
Kumar sought two weeks to go through the state-specific regulations applicable to Hindus. The court posted the matter for hearing on October 10.
It was brought up to the court that a similar petition filed by Upadhyay to suppress Waqf Act is pending consideration before the Delhi high court. The petitioner informed the court that a similar petition is ready to be filed in the Allahabad high court. Since there are numerous procedures emerging in two high courts, Kumar mentioned the top court to consider transferring the matters to the top court and decide the issue of legitimacy.
Kumar alluded to another batch of issues pending in the top court where the issue of whether any charitable trust established by a Muslim would essentially be a Waqf property. The bench recognized this matter from Upadhyay’s petition by saying, “In those petitions, there is no challenge to Waqf Act, but a notification issued by Waqf Board.”
Advocate MR Shamshad appearing for the Central Waqf Council informed the court that Upadhyay had 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 opt for the Delhi high court.
In the petition before the high court, Upadhyay stated that if the Waqf Act is established to secure the fundamental right to practice religion ensured under Articles 25 and 26, it must be in consonance with Articles 14 and 15 and ought to cover all minorities.