Opinion On Waqf Act, SC’s nudge, Centre pause

The government has agreed to pause till May 5 two central aspects of the contentious amendments to the Waqf Act that was passed earlier this month. It told the Supreme Court that it would neither make appointments to Waqf Boards nor change the character of waqf properties, including “waqf-by-user”, notified and registered as such. The assurance came after a bench led by Chief Justice of India Sanjiv Khanna asked some hard questions of Solicitor General Tushar Mehta and indicated that it could stay the operation of some aspects of the law. The Centre’s pause — after the SC’s nudge — is welcome. It must lead to more deliberation on an issue that involves the constitutionally guaranteed fundamental rights of minorities. On May 5, the SC will hear the Centre again and decide whether it must protect the status quo till the law is fully tested in courts.

At a time of deepening divides, the relief provided by the protection of the status quo is crucial. It will ensure that there is no encroachment on rights that could render the possible outcome of the court finding an infirmity in the law into an academic exercise. The pause was also necessary because a key provision that does away with the concept of waqf-by-user — where land used for Muslim religious or charitable purposes for a long period of time is deemed as waqf even it was not registered as such — kicked in after the President gave her assent to the law on April 8. Opposition and minority voices have argued that striking down waqf-by-user could put a question mark over the status of at least half of all waqf properties. While the government cited misuse of this concept, which is valid in some cases, the fact also is that it has been part of law recognised by Indian courts going back to 1935. Even the SC’s landmark ruling in the 2019 Ayodhya case recognised the validity of waqf-by-user. On representation of non-Muslims in waqf boards, too, the SC has raised crucial questions. The bench asked if the government would “openly” say that it would also appoint minorities on temple boards. These are complex issues — involving faith, and also the space in a deliberative democracy for minority concerns to be heard and addressed.

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The waqf law was introduced in August 2024 and was referred to a joint parliamentary committee that included members of the Opposition. It was debated in both Houses of the Parliament. On the face of it, this was a robust process. However, in the JPC, none of the issues raised by the Opposition were taken on board — all the 14 amendments that were accepted were introduced by the BJP and its allies. In Parliament, it ultimately came down to the fact that the government had the hard numbers. Judicial review is an integral and inalienable part of the constitutional system of checks and balances. CJI Khanna has underlined that there are some good aspects of the law, even as the bench he presides over also asks the tough questions that will only add to the legislative process, not detract from it.