The Delhi High Court issued a notice on 20th April 2022 in a plea challenging the constitutional validity of the Waqf Act 1995. The plea was filed by Advocate Ashwini Upadhyay. Ashwini Upadhyay stated in his plea that the Waqf Act is antithetical to Secularism in India.
BREAKING: Delhi High Court issues notice in plea by @AshwiniUpadhyay challenging constitutional validity of Waqf Act 1995. It is Upadhyay’s contention, inter alia, that the Waqf Act is antithetical to Secularism in India.
— LawBeat (@LawBeatInd) April 20, 2022
A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla of the Delhi High Court issued notices to Ministry of Home Affairs, Ministry of Law & Justice, Ministry of Minority Affairs and the Law Commission of India in the matter, asking them to file their counter affidavits within 4 weeks.
The court also issued a notice to the Central Waqf Board. The court had noted that the petitioner has not impleaded the Waqf board even though he had challenged the Waqf act. The bench directed to implead the Central Waqf Board, and asked Upadhyay to make them a party to the case.
The next hearing in the case has been scheduled on on 28 July.
Advocate Ashwini Kumar Upadhyay had filed public interest litigation (PIL) in the Delhi High Court challenging the Waqf Act 1995. The PIL stated that the Act is made under the garb of managing waqf properties but there are no similar laws for followers of other religions. The PIL challenged the validity of various provisions under this act. Upadhyay pleaded that the Act is against secularism, unity, and integrity of the nation. He also highlighted that the Waqf is not mentioned anywhere in the Constitution.
Additional Solicitor General Chetan Sharma represented the Union of India in the court. He told the court that this plea raises substantial questions, even though one of the aspects of the plea, i.e. that the act doesn’t mention a statement of the object and reason is incorrect.
Additional Solicitor General Chetan Sharma for Union of India told court that the plea raises substantial questions, even though one of the aspects of the plea, i.e. that the act doesn’t mention a statement of object(s) and reason(s) is incorrect.
— LawBeat (@LawBeatInd) April 20, 2022
Justice Naveen Chawla heard the petition and the response by the Union of India to the same. The petition challenged the validity of Sections 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 and prayed for directions to the Central Government or Law Commission of India to draft a Uniform code for trust-trustees and charities-charitable institutions.
In his plea, Ashwini Kumar Upadhyay had said, “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 petitioner argued 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.
Ashwini Kumar Upadhyay pointed how govt makes payments on Waqf Board but does not collect any revenue, and collects money from Hindu temples but does not spend anything on them. The plea said that the Waqf Board has Muslim MLA, MP, IAS Officer, town planner, advocates and scholars as its members who are paid from the public exchequer, despite the fact the Centre doesn’t collect any money from mosques or dargahs. “On the other hand, States collect around one lakh crores from four lakh temples but there are no similar provisions for Hindus. Thus, the Act offends Article 27,” Upadhyay argued in his petition.
The petition also seeks direction to the Central govt or the 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 disputes relating to the Waqf properties are decided by the Waqf Tribunal as per the Waqf Act. The PIL also challenges this provision and seeks direction that the dispute relating to religious properties shall be decided by the Civil Court only under Section 9 of the Civil Procedure Code 1908.
Earlier, the Supreme Court had refused to hear the plea seeking directions to the central government or the law commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’ in the spirit of Articles 14 &15 of the Constitution. The Supreme Court’s bench said that it cannot direct the parliament to enact such a law.
