The bench of Chief Justice BR Gavai and Justice Augustine George Masih heard all parties at length for three days before reserving its order on interim relief
NEW DELHI – The Supreme Court on Thursday reserved its verdict on the plea seeking a stay on the Waqf (Amendment) Act. After hearing all parties at length for three days, the apex court bench of Chief Justice BR Gavai and Justice Augustine George Masih reserved its order on interim relief, Bar & Bench reported.
A batch of petitions challenged the amendment’s validity, including by several Muslim organisations, Congress Member of Parliament Mohammad Jawed and All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader Asaduddin Owaisi. The petitioners moved the court, contending that the amendment amounts to discrimination against Muslims.
According to the petitioners, the amendments selectively target Muslim religious endowments and interfere with the community’s constitutionally protected right to manage its own religious affairs.
At the same time, six Bharatiya Janta Party-ruled states also moved the Supreme Court in support of the amendment. The intervention applications were filed by the Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh and Assam. These states primarily highlighted how they would be affected in case the constitutionality of the amendment act were to be tinkered with.
At the core of the challenge is the removal of ‘waqf by user’ from the statutory definition of waqf.
According to the petitioners, this omission would deprive historical mosques, graveyards and charitable properties, many of which have existed for centuries without formal waqf deeds, of their religious character.
In response, the Union government has maintained that the Act was brought in to curb the misuse of waqf provisions that were being misused to encroach on private and government properties.
In a written response to the petitions challenging the new law, the Centre said that after the previous amendment to the Waqf Act in 2013, there was a 116 per cent rise in “auqaf area”.
Defending the abolition of the concept of ‘waqf by user’, the Centre said despite there being a regime of mandatory registration for all kinds of waqf since 1923, individuals or organisations used to claim private lands and government lands as waqf “which not only lead to deprivation of valuable property rights of individual citizens but similarly unauthorized claims over public properties.”
The Centre also said that the exclusion of “waqf by user” from the definition of waqf does not curtail the right to dedicate property to God, but merely regulates the form of dedication in keeping with statutory requirements.
On the objections regarding the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Centre said that the changes in the composition of these bodies do not impair the Muslim community’s rights under Article 26. The addition of non-Muslim members is in a “microscopic minority” in the Council and Boards and their presence is meant to give inclusivity to the bodies, it was submitted.
During the hearing on Thursday, Solicitor General Tushar Mehta defended the 5-year practice condition to be eligible for the creation of a waqf.
“Creating a waqf is different than donating to a waqf. This is why a 5-year practice requirement is required for Muslims so that waqf is not used for defrauding someone. So, suppose I am a Hindu and I want to donate to a waqf, then donation can make a donation to a waqf. How can a non-Muslim be allowed to create a waqf? He can always donate to a waqf,” Mehta said.
