Plea In Delhi High Court Challenges Vires Of Waqf Act, Seeks Uniform Law For Charitable Institutions & Religious Endowments

A public interest litigation has been filed in the Delhi High Court 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.

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.

"…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.

The plea states that the impugned provisions of the Act grant special status to Waqf properties denying equal status to Trust, Mutts, Akharas, Societies and confer unbridled powers to Waqf Boards to register any property as Waqf property.

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.

"Moreover, no elaborate provision has been made in Sections 4, 5, 36, 40 of the Waqf Act to identify and determine the status of property as Waqf property and the provision made for inclusion of a property as Waqf property is not in conformity with the principles of natural justice guaranteed under Articles 14 of the Constitution," the plea adds.

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.

Also Read: 'Can't Entertain Challenges To Legislation In Abstract' : Supreme Court Refuses To Entertain Plea Challenging Wakf Act

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