The creation of Waqf is not a secular process but a Muslim’s dedication of property to God, Senior Advocate Kapil Sibal told the Supreme Court today, arguing against the inclusion of non-Muslim members in Waqf bodies as laid down in the Waqf Amendment Act that became law this year.
Mr Sibal, appearing for a petitioner, argued that the composition of the Central Waqf Council under the new law is such that Muslims can become a minority. The 22-member body has the Minority Affairs Minister as an ex officio member. Ten of its members must be chosen from among Muslims. The others include jurists, persons of national eminence and a bureaucrat.
The Senior Advocate argued that the control of the body has been taken away from Muslims. “Every religious endowment, not a single person is a Muslim or non-Hindu,” Mr Sibal said, pointing to Hindu and Sikh institutions.
Chief Justice BR Gavai then asked, “What about Bodh Gaya? All are Hindus.” Mr Sibal said, “I knew you will ask this”, and pointed out that places of worship can be same for Hindus and Buddhists.
“These are mosques. This is not secular. Creation of Waqf is itself not secular. It’s a Muslim property dedicated to God,” Mr Sibal said.
Senior Advocate Abhishek Singhvi, also appearing for a petitioner, said the new law is a recipe to ensure that the applicant keeps visiting the office for Waqf registration “forever”. “This is just to infuse terror… Endowments are there in every religion. Which religious endowment asks you to prove that you have been practising it for the last 5 years? Who asks them for proof of religion?” Mr Singhvi said that as soon as a dispute is raised under the new law, a property will lose its status as Waqf.
Senior Advocate Rajeev Dhawan, appearing for a petitioner, said this is the first time religion has been redefined in a religious Act. “We are a secular nation. One of my clients is a Sikh. He says I want to contribute to Waqf and I believe this property should not be taken away. The question also goes to the root of secularism.”
Senior Advocate Huzefa Ahmadi asked how someone would be identified as a practising Muslim to fulfil the criterion under the new law. “Can someone ask me, do you pray five times a day… and then someone will ask me if I drink… is that how it will be judged?”
Hearing in the case would resume tomorrow.
Earlier today, Chief Justice Gavai said there is a presumption of constitutionality in legislation that clears Parliament and courts cannot interfere unless a glaring case is made out.
The Waqf Amendment Act, which cleared the Parliament and became a law last month, sparked nationwide protests as Muslim bodies claimed it was an attack on minorities and accused to government of eyeing Waqf land. The government insists that the amendments are aimed at making the functioning of Waqf Boards more efficient, inclusive and transparent.
