Encroachers will have last laugh: SC on BJP leader’s plea to quash Waqf Act

NEW DELHI: The Supreme Court on Monday said it was “shocked” and “pained” over a petition challenging the Waqf Act for being discriminatory and allowing only Muslims to occupy Waqf Boards, saying that religion should not be brought in to question a law.

The top court also observed that encroachers will get a free run of Waqf properties if the court were to strike down this law.

“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 regulate and declare Waqf properties. In 1995, the law was modified and Waqf Boards were to be constituted in all states and union territories 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.

Ashwini Kumar Upadhyay’s petition argued that the Centre provided legislation exclusively manned by Muslims without providing any similar arrangement 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 further stated that tribunals and boards under such enactment should be religion-neutral and gender-neutral or else such Acts 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).

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

The bench, which was ready with a list of laws governing Hindu religious institutions and endowments where only Hindus were allowed to be board and tribunal members under the law, countered the petitioner. Referring 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.

“We were a little baffled by the kind of talks going on in some sections of media based on misapprehensions,” the bench said, adding, “We don’t look at the religion of any person manning these quasi-judicial authorities.”

Senior advocate Ranjit Kumar appearing for Upadhyay 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 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.

The court 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.”

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

It was pointed out to the court that s similar petition filed by Upadhyay to quash 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 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 a Muslim would necessarily be a Waqf property. The bench distinguished this matter from Upadhyay’s petition by saying, “In those petitions, there is no challenge to Waqf Act but to 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 approached the Delhi high court.

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