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The Supreme Court discussed whether waqfs are a fundamental part of Islam or a charitable act, as petitioners argued the Waqf Amendment Law violates rights and the government claimed waqfs are not essential to practice of the religion.
New Delhi:
A discussion on waqfs – charitable donation to be de-linked from Islam or an integral part of that religion, ‘a dedication to God… for spiritual benefit’, – was a highlight in the Supreme Court Thursday as petitioners concluded arguments saying the Waqf (Amendment) Law violates fundamental rights.
Responding to the government’s argument Wednesday – that while ‘waqf’ is an Islamic concept it is not an essential part of the religion and, therefore, not a fundamental right – senior advocate Kapil Sibal told the court, “Waqf is a dedication to God… for afterlife. Unlike other religions, waqf is a charity to God…”
The court, though, pointed out that ‘religious donation’ isn’t exclusive to Islam; “… in Hinduism there is ‘moksha’,” Chief Justice BR Gavai said. “Charity is a fundamental concept of other religions too…”
And Justice Augustine George Masih, the second judge on the bench, referred to a similar provision in Christianity, and said, “We are all trying to get into ‘heaven’.”
At the end of the petitioners’ arguments – on this, the hearing’s third day – the Chief Justice BR Gavai-led bench reserved its order on a plea for an interim halt of the contentious legislation.
Waqf – Charity Or Religion?
Jostling over the positioning of waqfs – charitable donation or religious activity – has been seen as critical in the larger context of the court either disallowing law or allowing it to stand.
The petitioners have sought to counter the government’s argument about waqfs not being vital religious practice by saying ‘no outside authority has any right to say that are not essential…’
The focus on what a waqf means is seen as critical as it informs much of the petitioners’ other arguments – that the new law interferes with essential religious, in this case, Islamic, practices.
NDTV Explains | All You Want To Know About The Waqf Row
The government has argued that by not recognising (correctly, it insists) waqf as a fundamental religious right, it allows for fair and transparent administration of the properties. This is important, it has argued, because unlike with Hinduism, waqfs “include many secular institutions like madrasas, orphanages…”
An example of that was heard as the court wound down for the day; a woman representing a Tamil Nadu village said the entire settlement had been declared waqf land, including a Hindu temple dating to the Chola dynasty, which ruled between the ninth and 13th centuries CE.
Composition Of Waqf Boards
Another argument, one that has been raised repeatedly, in court, in Parliament, and in protests nationwide, is the mandatory appointment of non-Muslims to waqf boards.
The government has backed the proposal by arguing waqf boards perform fundamentally ‘secular duties’ – i.e., management of assets. Those challenging the law, however, insist it violates Article 26 of the Constitution, which guarantees freedom to manage religious affairs.
READ | “Management Involves Secular Activities”: Centre On Waqf Act In Court
Mr Sibal referred, again, to this provision in today’s arguments, pointing out operationalisation of this means Muslims will be minorities on panels meant to govern aspects of their religion.
READ | “Will Muslims Be On Hindu Boards? Say Openly”: Court Asks Centre
The Supreme Court had earlier also raised this issue, asking the government is this means nominating non-Hindus to bodies governing temples could become accepted practice.
‘Who Asks For Religious Proof’
A third problematic point in the new Waqf Law is the stipulation that only Muslims practicing their faith for at least five years can make donations. This ties back to the secular/religious conceptualisation of waqfs, as argued by Mr Sibal on Wednesday.
READ | “Who Asks For Proof Of Religion?” Waqf Law Challenged In Court
“This is just to infuse terror… endowments are there in every religion. Which religious endowment asks you to prove you have been practising… Who asks for proof of religion?” senior advocate Abhishek Singhvi, representing one of the petitioners, had said.
‘Waqf By User’
The final issue around which this hearing has revolved is the waqf-by-user aspect that has been struck down by the law. The ‘waqf by user’ provision allows waqf boards to claim properties without documentation if used by Muslims for religious or charitable purposes.
This has been red-flagged by the government and the top court in earlier hearings. In April then-Chief Justice Sanjiv Khanna said there is concern, pointing to claims the Delhi High Court was on waqf land.
On this, the government said since the waqf-by-user had been made statutorily permissible in the 1954 Waqf Act, the right could therefore be taken away by new legislation. Specifically, the government has also assured critics removing this provision will not affect properties already designated as such.
On Interim Stay…
The government has said it will oppose any attempt to order a stay, partial or complete, on implementation of this new law, noting that it is a settled position in law that courts do not have authority to stay statutory provisions, either directly or indirectly.
READ | “Interim Stay Against…”: Centre Defends Waqf Act In Supreme Court
“There is a presumption of constitutionality that applies to laws made by Parliament and an interim stay is against the principle of balance of powers,” the government said in April.
Waqf Petitions In Court
The Supreme Court is hearing a handful of petitions (whittled down from nearly 200) challenging the new laws, which include rules that non-Muslim members must be part of the Central Waqf Council and state-specific boards, and that donations may only be made by practicing Muslims.
The revised Waqf laws were passed by Parliament in April after heated debates in Parliament and a series of stormy meetings by a joint committee. They have been criticised as “draconian” by the opposition but hailed by the government as an effort to ensure transparency and gender equality.
With input from agencies
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