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"Pained That You've Put It To Religion" : Supreme Court Judge On Plea Against Wakf Act
Rintu Mariam Biju
19 Sept 2022 6:28 PM IST
The Supreme Court on Monday orally expressed reservations regarding the arguments made by a petitioner against the Wakf Act. A bench comprising Justices KM Joseph and Hrishikesh Roy was considering a petition filed by BJP leader Ashwini Upadhyay seeking to transfer to Supreme Court the petitions challenging the Constitutional validity of the Wakf Act from the Delhi High Court.When the...
The Supreme Court on Monday orally expressed reservations regarding the arguments made by a petitioner against the Wakf Act. A bench comprising Justices KM Joseph and Hrishikesh Roy was considering a petition filed by BJP leader Ashwini Upadhyay seeking to transfer to Supreme Court the petitions challenging the Constitutional validity of the Wakf Act from the Delhi High Court.
When the hearing started, Justice Joseph, said that he wanted to raise certain "academic queries" and invited the attention of the petitioner's lawyer Senior Advocate Ranjit Kumar to provisions of various state laws relating to Hindu endowments which mandate that the members of the Board must profess Hindu religion.
"There are talks going on in some sections of media, based on some misapprehensions, complete misapprehension. We prepared a list of state laws on Hindu endowments. Orissa, Tamil Nadu, Madhya Pradesh, Kerala- in all of those Acts, there is a provision that the member of the Board must profess Hindu religion. For example, refer to Section 8 of the Orissa Act", Justice Joseph said.
The petitioner is taking objection to certain provisions of the Wakf Act that the member of the Wakf Board should be followers of Muslim.
Disapproving the petitioner's argument, Justice Joseph said : "I must be speaking for myself, I must express my complete shock that if you say that we have a tribunal and if a judicial member is appointed, that man will decide on the basis of religion? Mr.Ranjit Kumar, are you really saying this? Are we going to go by religion?".
Justice Joseph pointed out that the Wakf Act is a regulatory law which seeks to protect Wakf lands and if the law is struck down, it will only benefit the encroachers.
"I feel pained that you've put it down to religion, we should certainly go beyond that. We shouldn't be talking about religion in these matters because the whole thing is, this is supposed to be regulating the Waqf", he added.
"The Waqf board is a statutory board and the property does not vest in the board, they are not the owners. Who could be possibly behind this? Persons who are encroachers-whether an encroacher is a Muslim or a Hindu or any person", the Supreme Court Judge further added..
"If you allow these laws to be struck down, those who are running the wakfs will have a free run. The persons will be encroaching on the Waqf land. You will not be able to remove it. Forget the religion of a person who is going to be member of a Tribunal. We have sufficient training…If someone is sitting at a quasi-judicial seat, we don't look at the religion of the person."
Kumar stated that his argument is limited to Waqf's power to taken away any land and bring it within its purview.
"When the Waqf Act comes, it's for regulating the Waqfs. They cannot do whatever they want with the property…..How do you bring in Discrimination? How do you bring in religion?", Justice Joseph asked while adding that Wakf Act brings in regulations.
"How do you allege discrimination? If your argument is accepted, the one who will have last laugh will be the encroacher", Justice Joseph stated. The judge also pointed out that there are demands made by certain sections to repeal the laws on Hindu endowments.
As regards the plea for transfer, Justice Joseph said that the other matter pending before the Supreme Court is relating to the notification of the Maharashtra State Waqf Board and the constitutionality of the Act is not in question. So, the only petition in that regard is before the Delhi High Court.
Ranjit Kumar then said that he would reflect on the queries raised by the bench and would get back, owing to which the bench posted the matter next to October 10.
The petition stated that the Act is made under the garb of managing waqf properties but there are no similar laws for the followers of Hinduism, Buddhism or other religions.
"Hence, it is against the secularism, unity and integrity of the nation. The Waqf is not mentioned anywhere in the Constitution. However, if the Act is enacted to secular fundamental rights guaranteed under Articles 25-26, then it must be in consonance with Articles 14-15."
It was also stated that Waqf Boards have been given special powers under Section 54 and 55 pertaining to removing encroachments. Though, Trustees, Mangers, Mahants and other persons managing Trusts do not enjoy such powers. This special status granted to Waqf Boards is clearly in violation of Articles 14 and 15 (1).
