Madhya Pradesh High Court Issues Notice To Centre, State Govt On Plea Challenging The Constitutionality Of Waqf Act

The Madhya Pradesh High Court (Indore bench) today issued notice to the State Government and the Central Government on a Public Interest Litigation (PIL) plea filed before it challenging the constitutionality of the Waqf Act, 1995.

The PIL plea states that the Centre enacted the religion-biased Waqf Act against the basic tenets of Articles 14-15 & other Articles of the Constitution of India.

Issuing the notices, the bench of Justice Vijay Kumar Shukla and Justice Rajendra Kumar Verma posted the matter for further hearing after 6 weeks.

The PIL plea which has been moved by a former head constable in MP Police Ram Prasad Patel and an Advocate Jitendra Sharma (through advocate Manish Gupta) assails sections 4 to 9, Section 40, Section 54, 55, Section 85, Section 91, Section 101, 104, 107, and other provisions of the Waqf Act. The plea seeks a declaration to hold these sections as inoperative.

The plea also prays for a direction to the Law Commission of India to draft a Uniform Code for Trusts and Trustees and Charities and Charitable Institutions as per the spirit of Articles 14 and 15 and publish it for public debate and feedback. 

The plea submits that the aforementioned sections of the 1955 act are against the constitutional principles of equality before the law and secularism as framed in the constitution by the founding fathers of the constituent assembly under Articles 14, 15, 16, 21, 25, 26, 27 and other relevant provisions of the constitution of India.

The plea goes on the argue that while on one hand, the Hindu religious and charitable institutions are governed by The Religious Endowments Act 1863, The Indian Trusts Act 1882, and various state acts and further, these enactments give power to the government to manage affairs of religious institutions, however, on the other hand, the Waqf Act gives unbridled powers to Waqf Board to manage religious affairs of the religious institutions.

"The Religious Endowment Act 1863, Indian Trustees Act 1866, Indian Trust Act 1882, Charitable Endowment Act 1890, Official Trustees Act 1913, and Charitable and Religious Act 1990 are made to manage trusts and religious endowments of all communities. But rather than unifying them and making a 'Uniform Code for Trust and Trustees, Charities and Charitable Institutions, Charitable and Religious Endowments and Religious Institution', the Centre has arbitrarily enacted the impugned religion-biased Act against the basic tenets of Articles 14-15 & other Articles of the Constitution of India," the PIL plea submits.

Further, the PIL plea also argues that Sections 4 to 9, 40, 54, 55, 85, 91, 101, 104, 107, and other provisions of the waqf Act grant special Status to Waaf properties denying equal status to Trust, Mutts, Akharas, Societies. It also submits that the Act confers unbridled powers to Waqf Boards to register any property as Waqf property.

"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 Zoroastrians are discriminated. It offends Articles 14-15 of The Constitution of India," the Plea submits.

Significantly, the PIL plea states that in the last 10 years, Waqf boards have rapidly captured the lands of others and declared such properties as Waqf property, due to which, at present, 6,59,877 properties have been registered as Waqf property.

Further grounds taking in the PIL plea to challenge the Waqf Act (list not exhaustive)

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

- Neither the Waqf board nor the Waqf tribunal is bound to observe the Civil Procedure Code or the Indian Evidence Act in its proceedings and thus the citizens belonging to non-Islamic religious communities are denied their right to Free and Fair Trial.

- Waqf Boards have been given special powers in sections 54-55 in the matter of removing encroachment similar power is not given to religious institutions managed by non-Islamic religious communities and denominations and thus these provisions offend Articles 14, 15, and 26 of the Constitution of India.

In related news, the Supreme Court in April 2022 refused to entertain a petition filed by Advocate Ashwini Upadhyay challenging the constitutionality of the Wakf Act, 1995.

A Bench comprising Justices DY Chandrachud and Surya Kant observed that the constitutionality of 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.

A public interest litigation plea had been filed in the Delhi High Court earlier this year 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.

However, Jamiat Ulama-i-Hind, a social religious organization, in September this year moved the Delhi High Court opposing this PIL plea filed by BJP leader and Advocate Ashwini Kumar Upadhyay challenging the constitutional validity of various provisions of Waqf Act, 1995.

In October 2022, the Allahabad High Court also issued notices to the Attorney General of India and the Advocate General on a Public Interest Litigation (PIL) plea moved before it challenging the constitutionality of the Waqf Act, 1995. The matter has been listed as fresh on December 15, 2022.

Case title - Ram Prasad Patel and another vs. Union of India and others