Monday, March 4, 2024

Delhi High Court issues notice in petition filed to challenge provisions of Waqf Act 1995

The Delhi High Court on Wednesday has issued notice in a petition filed by BJP leader Ashwini Upadhyay challenging the provisions of the Waqf Act 1995.

The Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla issued notice in a plea filed by Advocate Ashwini Upadhyay, where the petitioner counsel has argued that the Waqf Act is against the principle of secularism as well as unity and integrity of the country because there are no similar laws for followers of Hinduism, Buddhism, Sikhism and other religions.

The bench inquired the petitioner counsel that why they haven’t impleaded the waqf board in the matter and why are the parties shying away from doing so.

“Court: You have not impleaded the waqf board there is a party challenging the waqf act

Petitioner’s Counsel: I have made the ministry of minority affairs. Milord and the ministry of law.

Court: The body which is constituted under the Waqf Act it should be there no,?

Petitioner’s Counsel: Milord it is under the Section 14 of the act. Because the entire act ultimately the owner is the ministry of minority affairs

Court: But why are you shy of impleading them

Petitioner’s Counsel: I don’t have any problem milord. I will summon them.”

The bench further noted that “At the onset, the petitioner states that the Waqf board is a party respondent, the petitioner have filed them a memo to the party, to which the petitioner’s counsel replied that, “ milord it’s a matter where we can make the party to the Delhi Govt. I am challenging the centre act so I made the party only the centre but if your lordships want I can make the party the Delhi govt.”

The Court also asked the petitioner counsel as to why is the Delhi govt. is impleaded and directed them to implead the Waqfboard.

The bench directed to file immediate memos to the parties and issued notice to the respondent no 4 and further asked the respondents to file affidavits within four weeks.

The matter is now listed on July 28th for further hearing.

Below are the short submissions on behalf of the petitioner counsel submitted in the court:-

  1. The Act is made to administer the properties of Muslims but there are no similar laws for followers of Hinduism, Buddhism, Jainism, Sikhism, Judaism, Bahaism, Zoroastrianism and Christianity. Hence, it is totally against the secularism, unity and integrity of the nation.
  2. The Act has no Statement of Objects and Reasons. Nevertheless, if it has been made under Entry-10 and Entry-28 of the List-3 of the Schedule-7, then it must be gender-neutral and religion-neutral.
  3. Waqf is not mentioned anywhere in the Constitution. However, if the Act is enacted to secure fundamental rights guaranteed under Articles 25-26, then it must be in consonance with Articles 14-15.
  4. If the impugned Act has been made to protect the fundamental rights guaranteed under Articles 29-30 then it has to cover all minorities i.e., followers of Jainism, Buddhism, Sikhism, Judaism, Bahaism, Zoroastrianism, Christianity and not only Muslims.
  5. Ordinarily, Centre cannot make Tribunals arbitrarily beyond thescope of Articles 323A-323B, but if the Act is enacted by using the plenary powers under Article 245 & Entry-97 of List-1, Schedule-7; then Tribunal has to perform in consonance with Articles 14-15.
  6. The Constitution establishes three types of Courts: (i) Union Judiciary under Articles 124-146, (il) High Courts under Articles 214-231, and (ili) Subordinate Courts under Article 233-237. The intention of the Framers was that all the matters relating to Civil dispute shall be decided by the Courts of Original Civil Jurisdiction constituted under Chapter-VI of the Constitution and Section 9 CPC.
  7. The Board which has Muslim MLA, Muslim MP, Muslim IAS Officer, Muslim Planner, Muslim Advocate, Muslim Scholar & Mutawalli; is paid from public exchequer, though Centre doesn’t collect even one rupee from any Mosque Mazar& Dargah. On the other hand, States collect around One Lac Crore from Four Lac Temples but there are no similar provisions for Hindus & Jains. Hence, Offends Article 27.
  8. 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 are made to manage trusts & religious endowment of all communities. But rather than unifying them and making a “Uniform Code for Trust-Trustees, Charities-Charitable Institutions, Charitable-Religious Endowments and Religious Institutions”, Centre has arbitrarily enacted the impugned Religion-Biased Act, against Articles 14-15.


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