Guide on Aligning Legal Matters: Insights from the Waqf Dispute
In a series of recent events, the Indian government has been implementing new laws and amendments aimed at promoting accountability, transparency, and equity. However, these actions have sparked controversy and raised concerns about the separation of powers and the judicial application of the Constitution.
The Union home minister has stated that these laws are intended to end injustice and corruption, prevent land grab, and ensure that religious conversion cannot be done for greed, temptation, or fear. Notable among these laws is the Waqf Amendment Act 2025, which has been met with criticism from various quarters, including the Supreme Court.
The government's decision to amend the Waqf Act and introduce the Mussalman Waqf (Repeal) Bill was made with the aim of promoting accountability, transparency, and equity. However, the Supreme Court has found important sections of the Waqf Amendment Act 2025 to be "prima facie arbitrary", "totally unconstitutional", and an encroachment into the courts' domain, violating the doctrine of separation of powers. The court's ruling also revealed a lack of judicial application of mind and amounted to a violation of the basic structure of the Constitution.
The new law empowers district officials to take over contested Waqf properties and order Waqf Boards to strike these properties off their register, effectively removing all traces of the properties as Waqf. This move has been criticised for being a contradiction to the principles upheld by the Supreme Court, as in the case of Umar Khalid, where the apex court has not held that "bail is the rule, and jail is the exception".
The use of bulldozers, found "totally unconstitutional for more than one reason", has been continued by the government despite the Supreme Court's criticism of their actions. Similarly, the Prevention of Money Laundering Act used by the Enforcement Directorate to hold suspects in prolonged custody has been deemed contrary to the principle that "bail is the rule, and jail is the exception" by the Supreme Court.
The principle of separation of powers is nullified when the legislative majority believes itself to be superior, consigning the basics of parliamentary democracy to the garbage heap of history. The executive, meaning the Narendra Modi government at the Centre and various other governments in the states, will use captive majorities in the legislatures to pass laws that are unsustainable in terms of the Constitution.
The lawmakers' actions do not instill in the public the confidence necessary to trust them to make sound laws rather than fulfill the wishes of their political bosses, pursuing their ideological agendas of visibly communalising the right to property, freedom to practice their religion, and the freedom to marry whomsoever they choose.
The Supreme Court's restraint in not declaring a law in its entirety as unconstitutional, except in the "rarest of rare cases", seems a temporary obstruction that the executive can wilfully remove by drafting another law. The name of the judge who was to review the constitutionality of the Waqf Amendment Act 2025 is not publicly available.
Despite these controversies, the Narendra Modi government has described the passing of these laws as a positive social reform, road to inclusive development, and an end to land grab through illegal sales of Waqf properties or cheap leases that deprive beneficiaries, especially vulnerable women and children. The government maintains that these laws are necessary to ensure accountability, transparency, and equity in the management of Waqf properties.
In conclusion, the recent laws and amendments passed by the Indian government have sparked controversy and raised concerns about the separation of powers and the judicial application of the Constitution. The Supreme Court's role in upholding the Constitution and safeguarding the rights of citizens is more important than ever in these challenging times.
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