'Waqf Board Members Are Quasi-Judicial Officers, Religion Doesn't Factor Into Their Decision': SC

The court's remarks came while hearing a petition challenging the constitutional validity of provisions of the Waqf Act which mandate that members of Waqf Boards should be followers of Islam.

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New Delhi: While hearing a petition challenging certain provisions of the Waqf Act, the Supreme Court on Monday made oral observations questioning the arguments by the petitioner for focusing on religion with regards to Waqf Boards, which the court described as ‘statutory boards’.

The petition was moved by lawyer and Bharatiya Janata Party (BJP) leader Ashwini Upadhyay and sought to transfer all petitions challenging the impugned Act from the Delhi high court to the Supreme Court.

In particular, the petitioner had objected to certain provisions in the Waqf Act which mandate that members of Waqf Boards constituted under the Act should be followers of Islam. 

The bench of Justices K.M. Joseph and Hrishikesh Roy, however, came down heavily on this argument. It stressed to Ranjit Kumar, the counsel for the petitioner, that members of these Boards, as quasi-judicial officers, have a statutory role and religion does not factor into the Board’s decisions.

“I must be speaking for myself, I must express my complete shock that if you say that we have a tribunal and if a judicial member is appointed, that man will decide on the basis of religion? Mr Ranjit Kumar, are you really saying this? Are we going to go by religion?” Live Law quoted the bench as asking.

It may be noted that Upadhyay has, in the past, been involved in communal stirs, such as the anti-Muslim slogans that were chanted at Jantar Mantar in Delhi in August last year. Upadhyay was among the six individuals arrested following the incident.

After his release on bail a day after his arrest, Upadhyay had claimed that he had no connection with the organisation of the event or those chanting slogans against Muslims, and had said that the Delhi police had framed him.

However, the Delhi police subsequently found links between Upadhyay and the organisers of the event, some of whom had been involved in communal incidents in the past as well.

In 2021, Upadhyay had also filed a petition before the Supreme Court seeking that Sections 2, 3, 4 of the Places of Worship (Special Provisions) Act, 1991 be set aside on grounds including that these provisions take away the right of a judicial remedy to reclaim a place of worship of any person or a religious group.

The Places of Worship Act stipulates that no change can be made to the religious character of a place and its status should be maintained as it was on the cutoff date of August 15, 1947.

Also read: Understanding The Gyanvapi Mosque Case: What Does The Places Of Worship Act Say?

In the last hearing in the case on September 9, the Supreme Court granted two weeks’ time to the Union government to file its reply to the petitions.

Petitioner’s arguments and court’s responses

The petitioner had contended that Act was merely in the garb of protecting Waqf properties and would actually lead to religious discrimination, arguing that followers of Hinduism, Buddhism and other religions have no such law for their benefit.

As such, the petitioner argued that the Act was “against the secularism, unity and integrity of the nation.” 

However, right at the outset of the hearing, the bench contested this claim, noting that it had compiled a list of states with specific laws on Hindu endowments. 

“Orissa, Tamil Nadu, Madhya Pradesh, Kerala – in all of those Acts, there is a provision that the member of the Board must profess Hindu religion,” the court said. In particular, it mentioned the example of the Orissa Hindu Religious Endowments Act, 1951 which stipulates, in Section 5, that ‘officers’ of Hindu trusts in the state must be appointed from those individuals who “profess the Hindu religion.”

Further, the petitioner highlighted the powers afforded to Waqf Boards to remove encroachment from properties registered under the Act, detailed in Sections 54 and 55. Arguing that trustees and managers of secular trusts as well as Mahants of Hindu institutions are not vested with such powers, the petitioner argued that the powers under the aforementioned sections are in violation of the fundamental right to equality detailed in Articles 14 and 15(1) of the Constitution.

Here, the bench again stressed that the duties of Waqf Boards, as statutory institutions, are not religious. “I feel pained that you’ve put it down to religion, we should certainly go beyond that. We shouldn’t be talking about religion in these matters because the whole thing is, this is supposed to be regulating the Waqf,” Justice Joseph observed orally.

Further, the judge stressed that judicial and quasi-judicial officers are professionals and have training. As such, there is no question of religion, either of the institution or the encroacher, getting in the way of the verdict. 

“Forget the religion of a person who is going to be member of a tribunal. We have sufficient training…If someone is sitting at a quasi-judicial seat, we don’t look at the religion of the person,” Live Law quoted Justice Joseph as saying.

The matter of the rights of Waqf Boards to administer properties had been in the headlines last month when the Karnataka government had sought to use an Idgah ground in Bengaluru for Ganesh Chaturthi celebrations but the state Waqf Board had opposed the moved, contending that it had the sole right to administer the land.

The Supreme Court had, at the time, directed that status quo be maintained and the issue of the right to administration of the land be heard at a later date where both the state government and the Waqf Board could put their arguments forth. 

Also read: Ganesh Chaturthi at Idgah Grounds Is An Effort to Turn Muslim Spaces ‘Public’

‘Striking down the Act would only benefit encroachers’

The court also pointed out that the only one who stands to benefit from the Act being struck down is the encroacher, and this person can be Muslim or Hindu. It noted that the individuals encroaching on Waqf land will have a “free run” and these encroachments will not be able to be removed without the statutory backing of the Act and the Waqf Boards.

When the petitioner’s counsel, Kumar, said that his argument pertains only to the Waqf’s power to take away land and bring it within its purview, the court stressed that the Board does not own the land and that its powers extend only to regulating that land. As such, the court questioned how the petitioner brought in ‘discrimination’ to the argument.

“How do you allege discrimination? If your argument is accepted, the one who will have the last laugh will be the encroacher,” Justice Joseph said.

After the court made its observations with regards to the petitioner’s objections against the Act, it came to the matter of the transfer petition. It noted that the constitutionality of the Act is only in question in a hearing in the Delhi high court; the Supreme Court is only seized of a matter regarding the notification of the Maharashtra State Waqf Board, which includes no challenge to the law itself.

As such, the petitioner’s counsel said he would take time to frame responses to the bench’s queries.The matter was thus listed for further hearing on October 10.