SC Must Be Guided By Constituent Assembly's Non-partisan Intent While Adjudicating on Waqf Act

The Supreme Court is adjudicating the constitutional validity of the Waqf (Amendment) Act, which prima facie violates several provisions of the constitution, including the fundamental rights in Articles 25 (right to profession, practice and propagation of religion) and 26 (freedom to manage religious affairs and administer and maintain institutions for charitable purposes).

During the hearing, when Chief Justice of India Sanjiv Khanna asked solicitor general Tushar Mehta how the Waqf Act allows non-Muslims to be part of the council at the national level and boards at the state level to administer waqf properties when there is no such law for the inclusion of non-Hindus in Hindu institutions, Mehta could not give a convincing response.

He could not even explain why the well-settled jurisprudence spanning centuries and recognising the waqf by user principle has been dispensed with in the Modi regime's newly enacted legislation.

Therefore, the Supreme Court in its order of April 17 recorded two assurances of Mehta that (1) till the next date of hearing on May 5 no appointments will be made to the Central Waqf Council and the waqf boards in the states and Delhi and (2) no waqf, including a waqf by user, whether declared by way of notification or by way of registration, shall be de-notified, and nor will their character or status be changed.

Such an order of the Supreme Court is indicative of the Modi government’s intent embodied in the Waqf Act of contravening the constitution and the fundamental rights in particular.

It is a cardinal principle that while examining the constitutional validity of the government's intent reflected in an Act of parliament, the legislative intent of the Constituent Assembly that framed the constitution should be invoked by the higher judiciary, including the Supreme Court, to examine the extent to which the provisions of parliamentary legislations are in conformity with the intent of the Constituent Assembly.

It is against this seminal backdrop that is to be examined how far the Waqf Act is either in negation of that legislative intent or in tune with it.

Let us first take the issue of the constitution of waqf boards and councils by the inclusion of non-Muslims as mandated by the Waqf Act. Such enlisting of non-Muslims is in flagrant violation of the legislative intent of the Constituent Assembly.

In the publication The Framing of India’s Constitution: Select Documents (Volume 2) edited by B. Shiva Rao, in page 294 there is a letter dated April 23, 1947 of Sardar Vallabhbhai Patel, who as chairman of the advisory committee of the Constituent Assembly on minorities, fundamental rights, etc enclosed the interim report on the subject of fundamental rights.

In page 301 of that volume, among others, one of the clauses on fundamental rights concerning the right to equality as adopted by the Constituent Assembly in April-May 1947 is published.

It reads:

“Nothing herein contained shall prevent a law being made prescribing that the incumbent of an office to manage, administer or superintend the affairs of a religious or denominational institution or the member of the governing body thereof shall be a member of that particular religion or denomination”.

Such an unequivocal provision adopted by the Constituent Assembly affirms the spirit that to manage the affairs of the religious denominations, members of that denomination should be there in the body mandated to do so.

Of the all the members of the Constituent Assembly, Syama Prasad Mookerjee, the Hindutva ideologue, in his memorandum on minorities submitted to the assembly on April 17, 1947, pleaded through its provision that

“All minorities shall have equal right to establish, manage and control at their own expense charitable and religious institutions, and start educational school and colleges with freedom to use their own languages and to practice their own religion therein.”

J.B. Kriplani, chairman of the fundamental rights subcommittee, submitted its report on fundamental rights to Patel, who was chairman. In that report it was provided that

“Every religious denomination shall have the right to manage its own in matters of religion and to own, acquire and administer property, movable immovable, and to establish and maintain institutions for religious or charitable purposes …”

Even B.R. Ambedkar while participating in the discussion on the report of the advisory committee on minorities and fundamental rights during April 21-22, 1947 suggested that instead of providing that “the state shall not impose disqualifications upon a religious denomination holding property”, it should be “no religious denomination should be disqualified to manage its own affairs”.

All the above taken from the aforementioned book Framing of India’s Constitution clearly bring out the bipartisan legislative intent of the Constituent Assembly that only religious minorities would manage their own affairs, including their charitable properties, which includes waqf.

Patel while speaking in the above-mentioned advisory committee meeting thoughtfully said that the issues involving communal matters of importance should never be decided by voting, but on reconciliation and accommodation by taking into account the concerns of minorities.

He cautioned that by dispensing with such an approach, conditions would be created for minorities to feel hostile to decision-makers.

The Supreme Court must be guided by that non-partisan legislative intent of the Constituent Assembly and Patel’s vision while adjudicating the constitutional validity of the Waqf Act.

S.N. Sahu served as officer on special duty to former President K.R. Narayanan.

This article was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.

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