Read Time: 06 minutes

The Delhi High Court has issued notice today in a plea that challenges the constitutional validity of the Waqf Act, 1995 and inter alia contends that the Act is antithetical to secularism in India.

A bench of acting Chief Justice Vipin Sanghi and Justice Naveen Chawla heard the matter and issued notice to the Respondents. They also inquired as to why the Waqf Board was not imploded as a party to the proceedings. The Petitioner informed the court that he would file an amended memo of parties within a week. Mr. Chetan Sharma, ASG accepted notice on behalf of the Union of India. He also pointed out that one of the submissions made by the Petitioner to the effect that the Waqf Act, 1995 does not have a statement of objects and reasons was incorrect but conceded that otherwise, the petition raises substantial questions of law. 

The public interest litigation challenges the validity of Sections 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 and praying for 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".

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 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

Recently, the Supreme Court refused to entertain a similar petition petition [WP(C)1080/2021] filed by the Petitioner before the Apex Court, challenging the constitutionality of the Waqf Act, 1995. However, the Petitioner withdrew said Petition from the Apex Court, with liberty to approach the High Court.

Cause Title:- ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & OTHERS