On December 2, 1948, B R Ambedkar gave a dire warning: “We must all remember — including members of the Muslim community who have spoken on this subject, though one can appreciate their feelings very well — that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. No government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad government if it did so.”
Ambedkar repeatedly warned against targeting the minorities. On November 4, 1948, “Speaking for myself, I have no doubt that the Constituent Assembly has done wisely in providing such a safeguard for minorities as it has done… To diehards who have developed a kind of fanaticism against minority protection, I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority.”
So, why has the current government of the day ignored these principles and passed the Waqf (Amendment) Act, 2025?
On May 25, 1949, Sardar Patel while calling upon the minority community to, “trust the good-sense and sense of fairness of the majority, and to place confidence in them” also said, “It is for us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we were treated in the manner in which they are treated.”
Will the government ignore these profound words?
The Waqf (Amendment) Act, 2025, strikes at the root of Fundamental Rights in Articles 25 and 26 of the Constitution. While Article 25 protects freedom of conscience and free profession, practice and propagation of religion, Article 26 guarantees freedom to manage religious affairs. Article 32, as held by the Supreme Court in Romesh Thapar vs State of Madras, is “a guaranteed remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.” In the Shirur Mutt case (1954), the SC declared somewhat similar provisions in the Madras Hindu Religious and Charitable Endowments Act, 1951 as unconstitutional in holding that Article 25 as its language indicates, “secures to every person subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he think proper and to propagate or disseminate his ideas for the edification of others” and that “It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting.” Expanding Article 26 it held that, “besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose”.
The Court further held “the guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ‘practice of religion’”.
In Ratilal Panachand Gandhi vs The State Of Bombay And Others (1954), the Court declared certain provisions of the Bombay Public Trust Act, 1950 as unconstitutional: “If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular Judge is bound to accept that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the Welfare of his community or mankind”.
The Waqf (Amendment) Act, 2025 has many provisions that directly offend Articles 25 and 26, including doing away with recognition of “waqf by user” and subjecting every existing waqf to the rigours of Section 3(a) to (e), which make it virtually impossible for registration of waqfs existing for centuries. Interestingly, the SC in 2020 in the Ram Janmabhoomi-Babri Masjid Case has upheld “Waqf by user” as appearing in old Section 3 (r) following well-known texts and series of judgments. The Court held “our jurisprudence recognises the principle of waqf by user even absent an express deed of dedication or declaration”.
The Act is a majoritarian piece of legislation, in complete disregard of the Constitution, the law, the practices and most of all, the feelings of over 150 million citizens. Almost prophetically, Thakur Das Bhargava hoped on December 6, 1948, before the Constituent Assembly, “In a democracy, the courts are the ultimate refuge of the citizens for the vindication of their rights and liberties. I want the judiciary to be exalted to its right position of palladium of justice and the people to be secure in their rights and liberties under its protecting wings.”
The Supreme Court’s timely intervention in the matter reinforces that hope.
The writer is a senior advocate
