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'Can't Entertain Challenges To Legislation In Abstract' : Supreme Court Refuses To Entertain Plea Challenging Wakf Act
Shruti Kakkar
13 April 2022 12:58 PM IST
The Supreme Court on Wednesday 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 a legislation cannot be challenged in the "abstract" as a mere "academic exercise", when the petitioner has not shown any violation of his...
The Supreme Court on Wednesday 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 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.
The petitioner had also sought for a uniform code for Trust-Trustees, Charities- Charitable Institutions and Religious Endowments contending that the Parliament cannot make a special law to deal with the trusts of a particular religious community alone. Rejecting this plea, the Bench said that it cannot issue a mandamus to the legislature to enact a law.
The petitioner had also questioned the competence of the Parliament to enact the Wakf Act by arguing that only a State Legislature can enact laws to deal with trusts and religious endowments as per Item 10 and 28 of List-III, Seventh Schedule. It was his case that a separate law to deal with Wakfs alone can't be enacted, when there is no similar central law to govern the endowments of other religions.
"We have to be very careful when there is constitutional validity of a legislation. We have to be very careful. When you challenge a law which has been enacted by a legislative body you have to very careful. There has to be some facts," the bench of Justices DY Chandrachud and Surya Kant orally observed.
Faced with the disinclination of the bench to entertain the petition, Mr.Upadhyay, who appeared as party-in-person, sought liberty to withdraw the same. Accordingly, the petition was dismissed as withdrawn,
The bench in their order said,
"Mr Ashwini Updayay appearing in person seeks permission of court to withdraw the petition to enable him to pursue remedies available in law. No opinion has been made in the petition on any aspect whatsoever."
What Transpired In The Supreme Court Today?
When the matter was called for hearing, Justice DY Chandrachud the presiding judge of the bench remarked that it was a well settled principle that no court, be it the Supreme Court or the High Court, can impose a mandate on the Parliament to pass a law.
"You are saying that there should be a common law for all trusts which is within the constitutional domain of Parliament. We cannot direct the Parliament and mandamus cannot be issued," the judge further said.
"That itself amounts to interference in the functioning of the legislature," Justice Kant added.
When Advocate Ashwini Upadhyay sought to read a note, the bench said,
"We don't want this publicity stunt by making you read out the note in court. We cannot direct the Parliament to enact the legislation which is in prayer A and D. To answer the issue which you have raised, we cannot issue mandamus to enact legislation."
Advocate Ashwini Upadhyay at this juncture submitted that apart from seeking issuance of a writ of mandamus, he had also challenged the constitutional vires of Waqf Act.
Justice Chandrachud asked, "Is there a particular case? Show us the facts of a particular case, if you have been prosecuted under the law. We don't entertain challenges to legislation in the abstract."
"If your property has been evicted- in abstract as an academic exercise, for what purpose? Has your property been appropriated or you have been evicted?" Justice Kant added.
At this juncture, Justice Chandrachud said, "We have to be very careful when there is constitutional validity of a legislation. We have to be very careful. When you challenge a law which has been enacted by a legislative body you have to be very careful. There have to be some facts."
Remarking that the bench cannot issue a mandamus to the Parliament the bench granted Upadhyay liberty to withdraw the petition and accordingly disposed of the plea.
Arguments in the Plea
Upadhyay in his petition had also sought for declaring Sections 4-9 of the Waqf Act("impugned act") as arbitrary irrational and offends Articles 14-15 hence void and inoperative.
Alternatively, relief for declaration that dispute relating to religious properties between communities can be decided only by the Civil Court under Section 9 of the Civil Procedure Code, and not by any Quasi-Judicial Tribunal was also sought.
It was argued in the petition that Parliament has no power to make special law in favor of a religious community giving special status discriminating similarly situated Hindu and other non-Islamic religious communities and those provisions have been enacted in violation of Articles 14,15,25,27 and 300-A of the Constitution of India.
"The interest of Hindus Jains Buddhists Sikhs and other Non-Islamic religious communities is involved in the matter and public in general is suffering due to conferment of unbridled powers to Waqf Boards and granting special status to Waqf properties and thus others are being discriminated before law and denied equal protection of law," the plea stated.
It was further stated in the petition that Parliament has conferred special status to Waqf Boards and created special forum like Waqf Tribunal at the cost of State exchequer.
The petitioner had also contended that the impugned Act has given unbridled powers to Waqf Board for including any property even a trust property as Waqf property.
Case Title: ASHWINI KUMAR UPADHYAY v UNION OF INDIA & OTHERS|WP(c) No.1080/2021
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