Delhi High Court Issues Notice To Centre On Plea Challenging Vires Of Waqf Act

The Delhi High Court today issued notice on a public interest litigation filed seeking uniform law for Trust and Trustees, Charities and Charitable Institutions and Religious Endowments and Institutions and challenges the vires of sec. 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 as being manifestly arbitrary and irrational.

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla has issued notices to Ministry of Home Affairs, Ministry of Law & Justice, Ministry of Minority Affairs and the Law Commission of India. It further directed for impleadment of Central Waqf Board.

The Respondents have been directed to file their counter affidavits within 4 weeks. The matter will be heard on 28 July.

Moved by Advocate Ashwini Kumar Upadhyay, the plea also seeks direction on the Centre or Law Commission of India to draft a 'Uniform Code for Trust-Trustees and Charities-Charitable Institutions' in spirit of Articles 14 and 15 and publish it for public debate and feedback.

The plea challenges the validity of provisions of Waqf Act 1995, by stating that while they are made under the garb of managing waqf properties but there are no similar laws for followers of Hinduism, Buddhism, Jainism, Sikhism, Judaism, Bahaism, Zoroastrianism & Christianity. Hence, it is against the secularism, unity and integrity of the nation, the plea adds.

Today, Upadhyay submitted a short note before the Bench, claiming that Act has no Statement of Objects and Reasons. However, the Bench opined that this submission is prima facie not true. 

"…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 plea avers.

It adds 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.

The plea further states that the Waqf Board cannot decide complicated questions of Civil Disputes relating to Title and Possession of property.

"The power of Civil Court to determine the issues relating to title has been taken away by creating Waqf Tribunal under S.83 as a substitute, which consists only one judicial member. Moreover, Parliament has no power to establish Tribunals beyond the scope of Article 323-A. It is apparent that the matters enumerated in Article 323-A do not attract property disputes relating to Charitable and Religious properties," it adds.

Recently, the Supreme Court refused to entertain a similar petition filed by Advocate Ashwini Upadhyay challenging the constitutionality of the Wakf Act, 1995.

A Bench comprising Justices DY Chandrachud and Surya Kant had observed that the constitutionality of a legislation cannot be challenged in the "abstract" as a mere "academic exercise", when the petitioner has not shown any violation of his rights due to the statute.

Case Title: ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & OTHERS