Waqf Row: Govt of India informs Delhi High Court that about 120 petitions are pending before courts against Waqf Act

Delhi, India: On March 20, the Government of India (GoI) informed the Delhi High Court that about 120 petitions are pending before various courts across India challenging the provisions of the Waqf Act, 1995.

The GoI made this submission in an application seeking an extension of time to file a response to the petitioner Advocate Ashwini Kumar Upadhyay’s PIL challenging the constitutional validity of various provisions of the Waqf Act, 1995.

Furthermore, the GoI submitted that “a Transfer Petition (Civil) No.1983 of 2022 has been filed before the Hon’ble Supreme Court by the Petitioner in the present case. It is submitted that this Transfer Petition has been filed by the Petitioner under Article 139(A) and the case is pending with the Hon’ble Supreme Court.”

The GoI submitted that it is essential for them to ensure a clear and consistent view is taken considering that multiple petitions challenging various sections of the Waqf Act, 1995, are pending before the courts. The GoI said that the process involves “thorough examination of petitions, consultation/vetting by Government Counsels and discussions with other stakeholders, such as State Governments.” Therefore, the GoI filed an application seeking an extension of three months’ time to file a reply in the case.

The Delhi High Court bench comprising Chief Justice Satish Chandra Sharma and Justice Sachin Datta granted the extension of time to the GoI’s standing counsel Kirtiman Singh to take instructions on the transfer and consolidation of all cases. Furthermore, the Court granted two weeks’ time to Delhi Waqf Board to file an impleadment application in the case, Live Law reported. The Court has listed the next hearing for the PIL on July 26.

In his PIL, the petitioner submitted that the “State cannot make any law giving special status and rights to a particular religious community within the four corners of Constitutional provisions and State cannot show its inclination towards one religion in a Secular State.”

He submitted, “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.”

“There is no provision to save the interest of properties belonging to non-Muhammdans from being illegally included in the list of Waqf. The Waqf Boards in arbitrary manner without due process of law, are taking advantage of undue powers under the Act 1995 captures lands of other communities even the Government and Nazul land over which no Muslim may have any right or claim,” he added.

The petitioner submitted “The Hon’ble Court in catena of decisions has held that the concept of secularism is embedded in the very theme of the Constitution. No doubt Articles 14, 15, 27 restrain the State from making any law or taking any action on the basis of religion or to make any provision for the benefit of one religion and that the tax payer money cannot be utilize for the promotion of a religion.”

The petitioner submitted “That it is relevant to mention that the Parliament by enacting the places of worship (Special Provision Act,1991) has declared that the nature of religious property like temple, mosque, church etc. existing on 15.08.1947 shall be maintained. The effect of Section 107 is that Muslims can recover their properties without being obstructed by any length of time but at the same time Hindus will be deprived to regain their properties captured by Muslims in utter violation of law, even by raising constructions at the same very place where temple existed. Therefore, the impugned provision is against the spirit of Articles 14 and 15 of the Constitution of India.”

The petitioner has prayed to the Delhi High Court to “direct and declare that Centre can enact only Uniform Law for Trust and Trustees, Charities and Charitable Institutions, and Religious Endowments and Institutions as enumerated in Item 10 and 28 of the List-III of Seventh Schedule in consonance with Articles 14-15; and can’t make separate law for Waqf and Waqf properties.

The petitioner has made the following prayers to the Delhi High Court:

1. “direct and declare that Centre can enact only Uniform Law for Trust and Trustees, Charities and Charitable Institutions, and Religious Endowments and Institutions as enumerated in Item 10 and 28 of the List-III of Seventh Schedule in consonance with Articles 14-15; and can’t make separate law for Waqf and Waqf properties.
2. direct and declare that Sections 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 are manifestly arbitrary, irrational and offend Articles 14-15 of the Constitution of India, hence void and inoperative.
3. alternatively, direct & declare that the dispute relating to religious properties shall be decided by the Civil Court only under Section 9 of the Civil Procedure Code 1908, and not by Waqf Tribunal.
4. direct the Centre or Law Commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’ in spirit of Articles 14-15 and publish it for public debate and feedback.”