The Supreme Court on Tuesday said the petitioners challenging the Waqf Amendment Act would have to demonstrate “a very glaring case” in favour of an interim stay or else the “presumption is with regard to the constitutionality of legislation”.
Arguing before a bench of Chief Justice B.R. Gavai and Justice Augustine George Masih, the petitioners alleged that the impugned legislation specifically targeted Muslims as no such regulation was in force for Hindus, Sikhs and other communities.
Solicitor-general Tushar Mehta, appearing for the Centre, submitted that the court should examine only three major controversial issues. The first one deals with the Centre’s power to denotify properties declared as “waqf by courts, waqf by user or waqf by deed”.
The second issue relates to the induction of non-Muslims in the Central Waqf Council and state waqf boards.
The third one involves a provision stipulating that a waqf property won’t be treated as waqf for the duration of a district collector’s inquiry to ascertain if the property is government land.
Senior advocate Kapil Sibal, appearing for some of the petitioners, said Hindu endowment boards in Andhra Pradesh and Tamil Nadu, and institutions like the Kashi Vishwanath temple, had only Hindus as ex-officio members.
“In every religious endowment board for Hindus and Sikhs, the governing members have to be from the same community,” Sibal said.
“The condition that I have to be a practising Muslim for five years before I create a waqf, who will decide that? If I am on my deathbed and I want to make a waqf, I have to prove that I am a Muslim. This is, per se, unconstitutional. Who will decide it? And why should I wait for five years? It is violative of Article 14 (equality), 25 and 26 (relating to religious freedom),” Sibal argued.
The senior counsel said the amended legislation, which insisted on a registration certificate to identify “waqf by user”, was an attempt at “capturing waqf properties across the country through executive fiat. The government officer will decide and it (government) will be a judge in his own case”.
Sibal also flagged a section of the law that stated that any waqf property declared as an ancient monument under preservation laws would cease to be waqf.
Senior advocate Rajeev Dhavan, representing another petitioner, cited the 11-judge constitution bench ruling in 2002 in the T.M.A. Pai Foundation case that held that the rights of the minorities to administer their properties could not be taken away by any legislation.
“This act is in the teeth of a large number of constitution bench judgments, including the Babri Masjid. It will also affect Article 26 (which grants religious denominations or sections thereof the freedom to manage their religious affairs) and Article 29 (which protects the cultural and educational rights of minorities),” Dhavan said.
Senior advocate Huzefa Ahmadi wondered how the authorities would determine if a person was a follower of Islam. “Can someone ask me if I pray five times a day?” he asked, adding that it would violate Article 15 (prohibition against discrimination).