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SC order on Waqf more than a rap on knuckles of govt: Derek O'Brien
Supreme Court order on Waqf Act more than a rap on knuckles of govt: TMC leader Derek O'Brien
Trinamool Congress MP Derek O'Brien has slammed the government after the Supreme Court put on hold some key provisions of the Waqf Amendment Act, saying it was more than just a rap on the knuckles of those indulging in "subterfuge" legislation.
However, he said the Supreme Court will have to address probing questions like whether the Waqf Act flouts rights such as equality, and freedom of religion.
The Supreme Court on Monday declined to stay the entire Waqf Amendment Act but temporarily suspended specific provisions, including the clause requiring a person to be a practising Muslim for five years to create a Waqf.
A bench of Chief Justice of India BR Gavai and Justice Augustine George Masih observed that some sections of the amended Act need some protection.
In a blog post, O'Brien said the week began for the Centre with another "black Monday." He said the stay on the key provisions represents a “rap on the knuckles” of what he termed “subterfuge legislation,” but heemphasised that broader questions about selective lawmaking and minority rights remain.
The TMC leader pointed that the Supreme Court stayed two of the most contentious provisions of the Waqf Act, 2025- One, a person has to be a practising Muslim for five years before he can dedicate a property as Waqf, and the provision that a designated officer can adjudicate the rights of personal citizens.
The TMC leader said the passing of the Waqf (Amendment) Bill, 2025 in Parliament was marked by "chicanery and evasive tactics".
Mockery of parliamentary procedure
"Even a casual observer of Parliament can outline how the BJP-led coalition is making a mockery of parliamentary procedure," the Rajya Sabha MP said.He said the motion to refer the bill to a Joint Committee of both Houses of Parliament was, again, moved on the last day of the session, and when the report of the Joint Parliamentary Committee (JPC) was presented in Parliament, dissent notes by members of the Opposition had been "blotted out by using a whitener".
He said the Waqf (Amendment) Bill was passed in Parliament in the dead of night, around midnight in Rajya Sabha, and before one in the morning in Lok Sabha, and added that Manipur was discussed at 3 am.
O'Brien said a major argument made in this case was of the principle of presumption in favour of constitutionality, which means that when a law's constitutionality is challenged, courts should generally presume the law to be valid and uphold it unless it is clearly proven otherwise.
"It assumes that legislatures act in good faith and within their authority, and that invalidating laws should be an exception, not the default," he said in the blog post on Monday.
Courts should only strike down legislation
The TMC leader said the Supreme Court like many constitutional courts worldwide, has repeatedly affirmed this presumption, stating that courts should only strike down legislation if it is "manifestly unconstitutional" or violates fundamental rights beyond reasonable doubt."However, given recent trends where laws have been used selectively to impose disproportionate burdens, regulate minority rights restrictively, or enable the state to overreach in areas constitutionally protected (like religious freedom and equality), the presumption in favour of constitutionality merits re-evaluation," he said.
He said governance under the BJP has revealed a striking pattern.
"The rise of customised, targeted laws designed to affect specific communities while leaving others untouched. The legal pluralism in various religions governing themselves, was a system adopted by the country with the intention to respect diverse customs. But this is increasingly being made a source of legal exceptionalism, where groups are treated not as citizens under a single rule of law but as subjects of special, more restrictive, legal regimes," he said.
"The effect is highly symbolic, the law itself becomes a political message, not merely a regulatory tool. Citizens are left with a sense that laws are designed 'for them' not to protect or administer society, but for surveillance, constraint, and to signal hierarchy," he said.
He said some examples of these laws are the religion-specific Citizenship Law creating exclusions based on faith, and Anti-Conversion Laws in states targeting interfaith marriage and religious conversion.
"Along with targeting, what these laws also do is that they place the state into a position of the judge of identity. Including the five year requirement in the Waqf Act, these laws rely on the State to decide who qualifies as a minority and who does not," he said.
"Once the State assumes the right to decide who qualifies as a legitimate member of a community, it establishes a precedent that identity is conditional, citizenship, faith, and rights can all be reduced to state-certified categories. When the State gets to decide who counts, democracy itself is at risk," he said.
O'Brien added that the Supreme Court will have to answer probing questions.
"Does the Waqf Act flout rights such as equality before the law (Article 14)? Does it flout freedom of religion (Articles 25 and 26)? Does it flout the prohibition of discrimination on grounds of religion (Article 15)? These are the probing questions which India hopes will be addressed by the Supreme Court," he added.
What did the Supreme Court say?
Passing the interim order, the Supreme Court bench stayed the provision in the Act that a person should be a practitioner of Islam for five years to create a Waqf.The Court said the provision would be stayed until rules are framed on determining whether a person is an Islamic practitioner. The bench said that without such a rule or mechanism, the provision would lead to an arbitrary exercise of power.
The apex court also stayed the provision allowing the Collector to decide the dispute whether a Waqf property has encroached upon a government property.
It said the Collector cannot be permitted to adjudicate rights of personal citizens, and this will violate the separation of powers.
The top court held that until the Tribunal adjudicates, no third-party rights can be created against any parties, and the provision dealing with such powers to the Collector shall remain stayed.
The apex court also said that the provision that not more than three non-Muslim members should be included in the state Waqf Board, and that, in total, not more than four non-Muslims shall be included in the Central Waqf Councils for now. The court also noted that as far as possible, the CEO of the Board should be a muslim.
(With PTI inputs)
Source: LiveMint
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