Waqf case in Supreme Court: Why Muslim petitioners say law 'designed to capture Waqf by non-judicial process'

According to him, private properties are being taken away only because there is some dispute.

“We don’t know what the nature of the dispute is. And when that dispute happens, a person is appointed, who is higher than the Collector. And that person will decide the dispute on his own. He will give a report. But by the time that report is given… we don’t have the time frame…. And while that report is pending, the property is taken away… without following any procedure. It’s no longer waqf property,” Sibal told the court.

Senior advocate Abishek Manu Singhvi also argued for the petitioners stating that requesting for proof of one’s faith is discrimination on the ground of religion under Article 15.

The petitioners also claimed that the requirement to prove one is a practising Muslim directly violates Article 25 of the Constitution, which guarantees the right to freedom of religion.

“The expression 'practice of Islam for 5 years' and aspect of contrivance. In another endowment, for a temple, there is no requirement to prove I am practicing the religion for a certain time... Is there an ascertainable principle to determine if I practice Islam? Can someone ask me, do you pray 5 times a day and thus I will stop from making a waqf? Then someone will ask me if I drink.. is that how it will be judged? Similar to the contrivance part which is sought to be proven,” said senior Advocate Huzefa Ahmadi.

 What did Centre say?

The Centre told the top court that Waqf by its very nature is a “secular concept” and can't be stayed since  “presumption of constitutionality” in its favour.

The Centre, in its written note submitted through Solicitor General Tushar Mehta, addressed the issues the court had previously raised and said the law only sought to regulate secular aspects of Waqf administration while safeguarding religious freedoms.

The Union Government had earlier  requested the court to confine the hearing to three specific issues for the purpose of granting interim relief. The three concerns are whether properties declared as waqf by courts can be denotified, the legality of waqf-by-user, and waqf-by-deed—before proceeding to wider questions around the law.

The Centre also opposed the plea for the stay.

“Contrary to the submissions of the petitioners, no grave national urgency arises which warrants a stay of the enactment, as every situation which may arise during the operationalisation of the enactment can be tackled judicially at the appropriate forum,” Mehta’s note stated.

The Centre had earlier assured the court it would pause denotification of Waqf properties and non-Muslim appointments until the hearing concludes.