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Synopsis

A petition in the Supreme Court has sought transfer of the plea challenging constitutional validity of the Waqf Act, 1995 from Delhi High Court to the Supreme Court.

In view of the 55 similar matters pending before the Supreme Court likely to be listed for final hearing, Advocate Ashwini Upadhyay has sought transfer of his petition.

The public interest litigation before the Delhi High Court challenges the validity of Sections 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 and seeks directions to the Central Government or Law Commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’.

The petitioner, Advocate Ashwini Kumar Upadhyay, has challenged the validity of provisions of the Waqf Act, 1995 on the ground that they are "unfair" and "arbitrary", as there are "no similar laws for any other religious community in India". His petition inter alia contends that the Act is antithetical to secularism in India.

Other arguments made by the petitioner are as follows:

• A Waqf has not been envisaged anywhere in the Indian Constitution.
• The Waqf Act, 1995, if made to protect religious minorities, must be in consonance with Articles 14 and 15 of the Constitution and must cover other religious minorities such as Jains, Buddhists, Sikhs, Christians, etc and not be made solely for Islam.
• The provisions of the Waqf Act, 1995 grant special status to Waqf properties and give the Waqf board unbridled powers, while denying such powers to other religious institutions such as Trusts, Mutts, Akharas, etc.
• There is a lack of safeguards against the properties of Hindus, Jains, Buddhists, Sikhs and other communities, from inclusion in the list of Waqf properties issued by the Waqf Board. This is because what property constitutes Waqf property is determined by the Waqf Board, subject to order of the Waqf Tribunal.
• While Waqf Tribunals have been given special rights under Sections 54-55 of the Waqf Act, 1995, Trustees, Managers, Shebaits, Mahants and other similarly situated persons managing and administering other religious institutions and properties do not enjoy similar rights and power. Thus, the Waqf Act, 1995 is against the right to equality guaranteed under Article 14 and 15 of the Constitution of India

Case Title: Ashwini Kumar Upadhyay Vs. Union of India & Ors.