The Supreme Court on Wednesday refused to entertain a plea challenging the constitutional validity of certain sections of the Waqf Act, as these provisions grant special status to Waqf properties.
A bench of Justices DY Chandrachud and Surya Kant said that it cannot direct Parliament to enact a new law and the “constitutionality of legislation cannot be challenged in the abstract” which will be a mere academic exercise.
The bench asked advocate Ashwini Kumar Upadhyay, who filed the petition, as to how he is affected by the Act and whether any of his property has been appropriated under law.
“Where is the violation of your rights? Show us an example where your property has been appropriated. We cannot challenge the constitutionality of any law in the abstract. This will be a mere academic exercise”, the bench said.
Justice Chandrachud said, “We need to be very careful when there is a challenge to the constitutional validity of legislation. The law has been enacted by a legislative body. There has to be an aggrieved party and there have to be some facts”.
He said, “There is a settled principle of law that no court whether it’s the High Court or the Supreme Court can issue any mandamus to Parliament to enact a law”.
The bench said, “In your plea, you are saying that there should be a common law for all the trusts which are within the constitutional domain of Parliament. We cannot direct Parliament and issue the mandamus to enact a law”.
Justice Kant said that it would actually amount to interference in the functioning of the legislature.
Upadhyay, who appeared in person, said that he has prepared a note of his submission and it can be taken into account.
The bench said, “We don’t want you to make a publicity stunt by reading out the note. Your note says what is in your writ petition we cannot direct Parliament to enact legislation so two prayers cannot be entertained”.
Upadhyay said that besides the direction of enacting a new law, he has also challenged the vires of the Waqf Act. The bench said, “Show us a particular case, where you are aggrieved. Have you been persecuted under the law? Has your property been appropriated under the law or have you been evicted? Sorry, we don’t entertain such challenges in the abstract”.
Upadhyay then said that he would like to withdraw and move the High Court to avail his remedy. The bench then passed the order, “Ashwini Kumar Upadhyay, who appears in person, seeks the permission of the Court to withdraw the petition so as to enable him to pursue such remedies as are available in law. The petition is accordingly dismissed as withdrawn.” It said that no opinion has been expressed by this Court on any aspect of the petition. In his PIL, Upadhyay said that he is challenging the provisions of the Waqf Act, 1995 as these provisions grant special status to waqf properties denying equal status to Trust, Mutts Akharas, and Societies and confer unbridled powers to the Waqf boards to register any property as Waqf property.
“There are no safeguards for Hindus, Jains, Buddhists, Sikhs, and other communities to save their properties from inclusion in the list of Waqf issued by the Government or Waqf boards. Hindus, Jains, Buddhists. Sikhs and other communities are being discriminated against, hence the provisions offend Article 14-15 of the Constitution”, the plea said. It said that no elaborate provision has been made in the provisions of the Waqf Act to identify and determine the status of the property as Waqf property is not in conformity with the principles of natural justice guaranteed under Article 14 of the Constitution.
It said that there is a unique provision in the Act that authorises the Waqf boards to enquire in respect of any law to find out as to whether the property is Waqf property or not. “In case Waqf board has reason to believe that any property of Trust, Mutts, Akharas, and Societies is a Waqf property, it may call upon the Trust or Society to show cause as to why such property be not registered as Waqf property. The decision of the board is final subject to any order passed by the Tribunal”, it said.
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