A Waqf is made when a Muslim dedicates their property to God, not as a result of any secular process, according to Senior Counsel Kapil Sibal in the Supreme Court today.
According to Mr Sibal, the way the Central Waqf Council is set up under the new law raises the possibility for Muslims to become a minority. Minority Affairs Minister holds the position of an ex officio member in the 22-member body. At least ten members of the group must come from the Muslim community. These include jurists, people of national significance and a bureaucrat as well.
The Senior Advocate pointed out that Muslims are not allowed to control their own bodies. All religious endowments, big or small, are covered by the Act and no religious institution should exclude anyone because of their religion, said Mr Sibal.
Chief Justice Gavai then wanted to know what the status of Bodh Gaya was. Everyone in Kashmir is a Hindu.” When asked, Mr Sibal responded by noting that spaces for both beliefs can be the same.
They are called mosques. This is religious information, not secular. Waqf is not a secular concept in its own right. It belongs to the Muslim community as a sacred site for worshiping God, Mr Sibal noted.
According to Senior Advocate Abhishek Singhvi, appearing for a petitioner, the new law guarantees that individuals will need to visit for registration of Waqf property “in perpetuity”. It’s done just to spread fear… All religions have endowments. Which religious endowment makes you show evidence of having practised it for at least 5 years? Who makes them prove their faith? Any dispute under the new law would mean that the property would no longer be considered Waqf, according to Mr Singhvi.
Senior Advocate Rajeev Dhawan said that redefining religion within a religious Act is unprecedented. We exist as a secular nation. A Sikh is one of my clients. He tells me he wants to include this property in Waqf and he believes it must not be seized. The question deals with what secularism is really about.
The Senior Advocate Huzefa Ahmadi asked what proof of faith would be required to satisfy the law. Is it true that someone will begin with, do you pray, then switch to, do you drink, all to judge me?
Live court hearings will start again tomorrow.
Furthermore, Chief Justice Gavai explained that there is usually no need for the courts to interfere with legislation that passes through Parliament.
National protests broke out last month as Muslim groups said the Waqf Amendment Act which cleared Parliament and became law, was an attack on minorities and also accused the government of seeking to take over Waqf land. It is the government’s view that these amendments will increase efficiency in Waqf Boards, make them more open and fair and give them more support.
“Courts Cannot Intervene Unless…”: Chief Justice’s Big Remark On Waqf Law
The courts may only get involved if Parliament passes a law clearly outside the constitution’s limits, Chief Justice BR Gavai said in today’s hearing.
The Chief Justice Gavai and Justice AG Masih’s bench was addressing a group of petitions against the Waqf Amendment Act which was made into law last month. Three matters had been chosen earlier by the court — who can use Waqf in practice, the nomination of non-Muslims to Wakf Council and boards and finding government land included in Waqf. A spokesperson for the Centre said that these measures would be withheld until the dispute was settled.
At today’s proceedings, the Solicitor General reported that the Centre had replied to these three claims. These days, the written arguments put forward by the petitioners involve other matters aside from these cases. He said, “We should just focus on these three issues.”
Kapil Sibal and Abhishek Manu Singhvi, who are senior advocates for the petitioners, raised objection to this Commission. Sanjiv Khanna said the court will study the case and determine what kind of interim relief is necessary. These days, the issues are no longer simply three things. Mr Singhvi indicated that the Supreme Court cannot accept a “piecemeal” approach to the matter.
According to Mr Sibal, the Act was made to secure Waqf lands. There is no system in place for removing Waqf land using the law. He added that only someone who has been practising Islam for at least five years can establish a Waqf. Before I set up a Waqf while dying, I must show that I have practised my religion. This is not legal under the Constitution,” he pointed out.
Mr Sibal pointing out that the law was designed to take over Waqf properties, the Chief Justice responded with, “Legislation passed by Parliament is deemed to be Constitutional.” Courts are only involved when it’s very obvious, as in the present scenario, the case makes itself clear enough.
According to Mr Sibal, a grievance from a village panchayat or any individual can now terminate the status of a property as Waqf. The government officer will decide what happens and act as a judge of his own actions. Asking questions isn’t necessary.”
Keep in mind that Waqf has to do with my assets. Personal property always belongs to a person and not to the State. Now, this very trait is taken from us,” he said.
Mr Sibal drew a similarity between mosques and temples. By the terms of our Constitution, it is not allowed for the State to finance anyone based on their religious beliefs. Funding for a mosque comes from the state, but a burial yard must be built on privately owned land. As a result, many choose to give their belongings as Waqf as they approach life’s end. I have never seen such devotion as at a temple. Neither mosques nor graveyards benefit from Rs 2000-Rs 3000 crore corpus. When the Chief Justice said priests also grant audiences and money at dargahs, Mr Sibal replied by saying he meant mosques.
Mr Sibal told the court that once the ASI protects a monument, it will no longer belong to the Waqf. There are other sites in Sambhal as well. As a result, if a dispute happens, the Waqf status is taken away. This situation is deeply troubling, he added. Some parts of the Act had been excluded from the JPC’s review and never discussed in Parliament, he explained.
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