Waqf Amendment Act: SC Hearing LIVE Updates
Supreme Court hearings concerning the legal and constitutional issues related to Waqf properties in India. Senior Advocate Kapil Sibal, representing the Muslim side, puts forth nuanced arguments challenging certain governmental amendments and legislative provisions affecting Waqf properties, especially the Waqf (Amendment) Act and other rules regarding registration, ownership, and religious rights associated with these properties. Solicitor General Tushar Mehta and the Court’s bench also contribute critical remarks, focusing on the legal scope and limits of reviewing certain points. The transcript highlights the core issues of property registration, transferability, government control, and the constitutional aspects of religious freedoms under Article 25.
1. Arguments by Kapil Sibal on Waqf Property Status and Registration :
- Kapil Sibal defends the traditional position of Waqf properties, emphasizing that once a property is declared as Waqf—a religious endowment or donation to God—it cannot be transferred or converted into non-Waqf property. He asserts the permanence and sanctity of Waqf, referencing the longstanding provisions under Waqf By-User laws.
- Waqf as an Inalienable Donation: Sibal informs the Court that Waqf properties, being donations to God, are not subject to transfer or government control beyond the doctrine’s boundaries.
- Role of Registration: One of the most contentious points raised is the government’s stance that only registered Waqf properties can be recognized as such, while unregistered ones will not be considered Waqf under the amended law. Sibal challenges this, pointing out that many Waqf properties exist unregistered yet have traditionally held their status.
- Legal History on Registration: Sibal traces the registration requirement back to the legal framework before 1923, explaining that registration became mandatory post-1923 but that non-registration historically did not cause loss of Waqf status.
- Supreme Court’s Engagement: The Court questions Sibal about whether registration for Waqf By-User properties was historically mandatory and whether the amendment laws introducing stringent registration requirements were retrospective. Sibal confirms registration was legally required but the penal consequences for non-registration were not previously recognized.
- Legal Consequences: He argues that the amended provisions effectively invalidate centuries-old Waqf property rights, undermining religious donations.
2. Constitutional and Religious Context of Waqf Properties :
Sibal highlights how the Waqf institution intersects with constitutional guarantees, particularly the fundamental right to religious practice:- Article 25 Implications: If a Waqf property is declared as government property or loses Waqf status through procedural or registration lapses, the right of worship or religious use afforded under Article 25 of the Indian Constitution is violated.
- Protection of Religious Rights: Sibal gives an example of the Khajuraho temple, protected under the Archaeological Survey of India (ASI), where the site remains accessible for worship despite ASI protection. He questions if similarly designated Waqf properties could lose their religious function.
- Opposition to Government Control: He underscores that government attempts to regulate or deprive certain Waqf properties infringe on religious freedoms, framing this as an unconstitutional overreach.
3. Challenges Regarding the Amendments and New Government Provisions :
The transcript reveals several legislative and administrative changes proposed or enforced by the government, which have sparked legal contests:- Amendment Act’s Provisions: The new law states that if any building is declared a protected ancient structure under the ASI Act, Waqf rights on it shall cease.
- Restriction on Conversion via Religious Conversion: The amendments disallow any person who has converted to Islam within the last five years from creating a Waqf, a provision the government defends as constitutional.
- Changes in Waqf Board Composition: Previously, Waqf board members were elected exclusively by the Muslim community. The new rules allow nomination and inclusion of non-Muslim members—up to seven out of eleven—leading to resistance from Muslim groups concerned about external influence on religious management.
- Government’s Position via SG Tushar Mehta: Mehta urges the court to focus on three core issues previously identified and cautions against entertaining new issues mid-hearing. He stresses that the government has responded adequately to the central points at stake.
4. The Issue of Investigations and Interim Status of Waqf Properties :
- An important procedural concern relates to property status during investigations:
- Effect of Investigation Claims: It has been raised that if a claim arises stating a Waqf property is actually government property and a commissioner starts investigation, the property’s Waqf status might be temporarily nullified without waiting for the investigation’s conclusion.
- Criticism of This Provision: This is contested as arbitrary and unjust; properties would lose their Waqf status prematurely, impacting religious and community rights.
- Court’s Queries on Religious Freedom under ASI Protection: The bench probes if protection or registration under ASI should deprive religious freedoms, pointing out historic cases allowing religious use, even in protected sites.
5. Broader Legal and Social Implications :
- The transcript conveys the broader implications of Waqf property regulation for the Muslim community and India’s pluralistic fabric:
- Preservation of Historical Religious Trusts: The arguments emphasize centuries-old rights and the significance of Waqf endowments in preserving Islamic religious and cultural heritage.
- Balance Between State Regulation and Religious Autonomy: The hearings reflect tensions between government efforts to regulate and control Waqf assets and community demands for autonomy and protection of religious rights.
- Judicial Restraint and Evidence Requirement: The Supreme Court’s chief justice remarks underscore judicial prudence, indicating the court will only impose interim restrictions on law enforcement if the challengers establish a strong prima facie case.
6. Current Status of Hearings and Outlook :
- Hearings involve submissions from multiple parties, with both proponents and opponents of the new amendments given equal opportunity to present.
- The government advocates focusing on three specifically identified issues, urging the court to avoid expanding the scope.
- The dissenting counsel strongly opposes new impositions that seemingly invalidate traditional Waqf rights without adequate procedural safeguards.
- The status of unregistered properties remains pivotal; the controversy centers on whether lack of formal registration justifies revocation of Waqf status.
- The court continually examines constitutional protections, procedural fairness, and the historic nature of Waqf properties.
Highlights :
- 🏛️ Supreme Court hears critical arguments on Waqf property registration and governance challenges.
- 📜 Kapil Sibal emphasizes that Waqf properties, once declared, cannot be transferred or taken over arbitrarily.
- 📅 Historical legal requirement: Registration of Waqf by user properties mandatory since 1923, but deregistration should not nullify Waqf status.
- ⚖️ Constitutional debate on whether ASI protection infringes religious freedom under Article 25.
- 👥 Controversy over including non-Muslims in Waqf boards, raising community representation concerns.
- 🔍 Government’s power to claim Waqf properties as state assets and initiate investigations faces legal scrutiny.
- ⏳ SG Tushar Mehta insists only three key issues should be adjudicated, discouraging introduction of new points.
Key Insights :
- 🏛️ Legal Sanctity of Waqf Properties: Kapil Sibal’s key argument that Waqf properties are religious endowments donated to God and hence cannot be sold or transferred reflects centuries-old Islamic legal traditions integrated within Indian law. This view safeguards Waqf properties from arbitrary state appropriation, making the government’s attempts to redefine or control these assets a major constitutional and legal challenge.
- 📜 Registration as a Historical and Legal Marker: The debate around registration of Waqf by user properties reveals a nuanced legal dilemma. While registration was made mandatory post-1923, Sibal insists that lack of registration cannot retroactively annul the Waqf status. This issue underscores the tension between formal legal procedures and historically recognized religious practices. The court taking Sibal’s arguments on record points to recognition of this complexity.
- ⚖️ Intersection of Heritage Laws and Religious Rights: The ASI’s role in protecting ancient properties, including religious sites, raises important questions about balancing heritage preservation with the constitutional right to religious freedom (Article 25). The example of Khajuraho temple demonstrates that ASI protection does not bar worship, but the new law’s provision to revoke Waqf status upon ASI protection creates friction, opening debates about whether such moves violate religious freedoms.
- 👥 Representation and Autonomy in Waqf Boards: The amendment allowing non-Muslims to occupy up to seven of eleven seats on Waqf boards has sparked controversy. It illustrates the political and communal sensitivities around community self-governance. Sibal stresses the historical practice of Muslim-elected Waqf board members and views this development as diluting the authority of Muslim stakeholders, indicating potential conflicts between inclusive governance and community rights.
- 🔍 Government Authority vs. Waqf Autonomy: The statutory provision permitting commissioners to initiate inquiries into Waqf property ownership, and immediately treating a property as non-Waqf upon investigation commencement, has been challenged as arbitrary. This reflects a critical point of administrative overreach versus protection of subsequent legal rights, highlighting the legal uncertainties faced by Waqf properties under new amendments.
- ⏳ Judicial Restraint and Procedural Focus: The Solicitor General’s insistence on limiting the court’s considerations to only three specific issues reflects the judiciary’s preference for procedural clarity and scope limitation. It signals the court’s cautious approach to avoid complicating the matter with unrelated issues, ensuring a focused and legally sound judgment that respects due process.
- 🏛️ Implications for Future Waqf Governance: The ongoing deliberations and legal scrutiny have far-reaching consequences for Waqf governance, religious property management, and minority rights in India. The case serves as a landmark in setting precedents about how religious trusts are treated by state laws, registration mandates, and administrative controls, impacting the balance between state interests and constitutional freedoms.
