The Delhi High Court issued a notice on 20th April 2022 in a plea challenging the constitutional validity of the Waqf Act 1995. The plea was filed by Advocate Ashwini Upadhyay. Ashwini Upadhyay stated in his plea that the Waqf Act is antithetical to Secularism in India.

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla of the Delhi High Court issued notices to the Ministry of Home Affairs, Ministry of Law & Justice, Ministry of Minority Affairs, and the Law Commission of India in the matter, asking them to file their counter-affidavits within 4 weeks.

The court also issued a notice to the Central Waqf Board. The court had noted that the petitioner has not impleaded the Waqf board even though he had challenged the Waqf act. The bench directed to implead the Central Waqf Board and asked Upadhyay to make them a party to the case.

The next hearing in the case has been scheduled for 28 July.

The Waqf Act, 1995 is against the right to equality guaranteed under Articles 14 and 15 of the Constitution of India

Advocate Ashwini Kumar Upadhyay had filed public interest litigation (PIL) in the Delhi High Court challenging the Waqf Act 1995. The PIL stated that the Act is made under the garb of managing waqf properties but there are no similar laws for followers of other religions. The PIL challenged the validity of various provisions under this act. Upadhyay pleaded that the Act is against secularism, unity, and integrity of the nation. He also highlighted that the Waqf is not mentioned anywhere in the Constitution. 

Additional Solicitor General Chetan Sharma represented the Union of India in the court. He told the court that this plea raises substantial questions, even though one of the aspects of the plea, i.e. that the act doesn’t mention a statement of the object and reason is incorrect.

Justice Naveen Chawla heard the petition and the response by the Union of India to the same. The petition challenged the validity of Sections 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 and prayed for directions to the Central Government or Law Commission of India to draft a Uniform code for trust-trustees and charities-charitable institutions.

The petitioner, Advocate Ashwini Kumar Upadhyay, has challenged the validity of provisions of the Waqf Act, 1995 on the ground that they are "unfair" and "arbitrary", as there are "no similar laws for any other religious community in India".

Waqf has not been envisaged anywhere in the Indian Constitution

Other arguments made by the Petitioner are as follows:-

• A Waqf has not been envisaged anywhere in the Indian Constitution
• The Waqf Act, 1995, if made to protect religious minorities, must be in consonance with Articles 14 and 15 of the Constitution and must cover other religious minorities such Jains, Buddhists, Sikhs, Christians, etc and not be made solely for Islam.
• The provisions of the Waqf Act, 1995 grant special status to Waqf properties and give the Waqf board unbridled powers, while denying such powers to other religious institutions such as Trusts, Mutts, Akharas, etc.
• There is a lack of safeguards against the properties of Hindus, Jains, Buddhists, Sikhs, and other communities, from inclusion in the list of Waqf properties issued by the Waqf Board. This is because what property constitutes Waqf property is determined by the Waqf Board, subject to the order of the Waqf Tribunal.
• While Waqf Tribunals have been given special rights under Sections 54-55 of the Waqf Act, 1995, Trustees, Managers, Shebaits, Mahants, and other similarly situated persons managing and administering other religious institutions and properties do not enjoy similar rights and power. Thus, the Waqf Act, 1995 is against the right to equality guaranteed under Articles 14 and 15 of the Constitution of India

In his plea, Ashwini Kumar Upadhyay had said, “If the impugned Act has been made to protect the rights guaranteed under Articles 29-30 then it has to cover all the minorities i.e., followers of Jainism, Buddhism, Sikhism, Judaism, Bahaism, Zoroastrianism, Christianity, and not only Islam.” The petitioner argued that there is no safeguard for Hindus, Jains, Buddhists, Sikhs, and other Communities to save their properties from inclusion in the list of Waqf issued by Waqf Boards. Therefore, Hindus, Jains, Buddhists, Sikhs, Bahais, Christians, and Zoroastrians are discriminated against.

Ashwini Kumar Upadhyay pointed out how govt makes payments to Waqf Board but does not collect any revenue, and collects money from Hindu temples but does not spend anything on them. The plea said that the  Waqf Board has Muslim MLA, MP, IAS Officer, town planner, advocates, and scholars as its members who are paid from the public exchequer, despite the fact the Centre doesn’t collect any money from mosques or dargahs. “On the other hand, States collect around one lakh crores from four lakh temples but there are no similar provisions for Hindus. Thus, the Act offends Article 27,” Upadhyay argued in his petition.

The Waqf Act, 1995, if made to protect religious minorities, must be in consonance with Articles 14 and 15 of the Constitution and must cover other religious minorities such as Jains, Buddhists, Sikhs, etc

The petition also seeks direction from the Central govt or the Law Commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’ in the spirit of Articles 14 and 15 and publish it for public debate and feedback.

The disputes relating to the Waqf properties are decided by the Waqf Tribunal as per the Waqf Act. The PIL also challenges this provision and seeks direction that the dispute relating to religious properties shall be decided by the Civil Court only under Section 9 of the Civil Procedure Code 1908.

Earlier, the Supreme Court had refused to hear the plea seeking directions to the central government or the law commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’ in the spirit of Articles 14 &15 of the Constitution. The Supreme Court’s bench said that it cannot direct the parliament to enact such a law.

References:

opindia.com