2025 ഏപ്രിൽ 18, വെള്ളിയാഴ്‌ച

A restoration of sanity to the constitutional system

P.D.T. Achary

is former Secretary General, Lok Sabha

A restoration of sanity to the constitutional system

The judgment of the Supreme Court of India, on April 8, 2025, namely, The State Of Tamil Nadu vs The Governor of Tamilnadu and Anr., can be called a landmark one as it has brought greater clarity to the constitutional provision dealing with the giving of assent to a Bill by a Governor. In this case, the background to the case is about the Governor of Tamil Nadu, R.N. Ravi, who had kept with him 10 Bills without taking any decision on them for many years. Finally, when the Assembly passed the Bills again and sent them to him, the Governor, instead of giving his assent, as per the mandate of Article 200 of the Constitution, sent them to the President of India for consideration. He sent the Bills to the President only after the Government of Tamil Nadu approached the top court.

The Bench of the Court (Justice J.B. Pardiwala and Justice R. Mahadevan) has now held that the action of the Governor in sending the Bills to the President at that stage to be unconstitutional and has struck it down. The Court also struck down the action taken by the President on those Bills — she had withheld assent. Invoking its special power under Article 142, the Court declared that all those Bills rejected by the President shall be deemed to have been assented to.

It is perhaps the first time in the history of the Court that Bills passed by the legislature of a state and withheld by the President have been declared as assented to by the Court. It is an extraordinary remedy to an extraordinary situation created by an extraordinary action of a State Governor.

In fact, Tamil Nadu is not the only State where the Governor has sat on Bills passed by the legislature. It has happened in Kerala, Telangana and Punjab. Kerala has now approached the Court on the same issue, which is yet to be heard.

The Bill does not die

Article 200 lays down the course of action to be followed by the Governor when a Bill duly passed by the legislature is presented to him. The logical course the Governor should follow is to give assent to the Bill. But if he does not follow this and decides to withhold assent to the Bill, the said Article says that he may declare that he is withholding assent. It would thus appear that once the Governor withholds assent, the Bill will die a natural death. The wording of this Article would convey such a meaning. But this part of the Article was very cogently explained by the Court in State Of Punjab vs Principal Secretary to The Governor of Punjab and Another (2023). The Court made it unambiguously clear that a declaration by the Governor that he is withholding assent does not bring an end to the Bill. It held that withholding of the Bill should be followed by sending the Bill to the legislature for reconsideration as soon as possible.

When the Bill is thus sent to the legislature, it would reconsider it promptly and send it back to the Governor either in the form in which it was passed originally or with amendments suggested by the Governor. Either way, the Governor will have to give assent to the Bill. He cannot exercise any veto against it. The Court has explained this point in the following words: “if the governor decides to withhold assent under the substantive part of Article 200 the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration … if the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200 the governor as the unelected head of the state would be in a position to virtually veto the functioning of a duly elected legislature by simple declaring that assent is withheld without any further recourse”.

This judicial explanation has been carried forward by the Court in the Tamil Nadu case. The Court has reiterated this position, namely, withholding assent is not the end of the story so far as the Bill is concerned but the Governor is mandated to send the Bill back to the legislature for its reconsideration and the Governor shall give assent to the Bill which is sent to him after reconsideration.

The Court’s ‘time limit’ and legality

Three crucial points have been decided by the Court which make this judgment truly historic. The first relates to the time limit fixed within which the Governor as well as the President of India should decide the issue of assent. The minimum period is one month and the maximum, three months. If the Governor or the President does not adhere to this time limit, the aggrieved State can seek the intervention of the constitutional court. Obviously, the Court went to the extent of fixing a time limit in this case because of the fact that the Governor sat on the Bills for years without taking any decision. The Court has said that the Governor does not have the power to exercise a pocket veto or an absolute veto while exercising his power under Article 200.

Following the judgment, questions have been raised on the legality of a time limit under Article 200. The Court has clarified it in the judgment — it has stated that it is guided by the inherent expedient nature of the procedure prescribed under Article 200 and the well-settled legal principle that where no time limit for the exercise of a power is prescribed, it should be exercised within a reasonable period. The Court has viewed the deliberate inaction on the part of the Governor in assenting to the Bills or reserving them for the consideration of the President as a serious threat to the federal polity.

The second point relates to the question of discretion of the Governor in withholding assent or reserving the Bill for the consideration of the President.

The Court has taken the position that the Governor can take either action only on the advice of the Council of Ministers. The judgment says that when the Governor withholds assent, he has to send the Bill to the legislature for reconsideration and when the Assembly sends the Bill back to the Governor with or without the amendments suggested by him, the Governor has to give assent.

But there is a problem with this proposition. For example, what is the occasion when the government has to advise the Governor to withhold assent and send the Bill to the Assembly for reconsideration? When the legislature can send back the Bill after reconsideration without accepting any of the amendments suggested by the Governor, how can it be then said that the Council of Ministers have advised the Governor to propose amendments to the legislature when the government commands a majority there? In fact, on the question of discretion, the Court has not been consistent as different Benches have given different opinions thereon.

Constitutional heads and judicial review

The third, and most crucial, point is about judicial review of the decision of the Governor and the President. The basic proposition laid down by the Court after reviewing a catena of cases is that “no exercise of power under the constitution is beyond the pale of judicial review”. So, it has held that there is no reason to exclude the discharge of functions by the Governor or the President under Articles 200 and 201, respectively, from judicial review.

The judgment has been assailed by the Kerala Governor who has said that this is a case of judicial overreach and that it is the job of Parliament, and not the Court, to amend the Constitution. While it is true that Parliament alone has the right to amend the Constitution, it is the job of the judiciary to explain and interpret the constitutional provisions. Another issue that has been raised by a section of lawyers is that the issues decided by Justice Pardiwala’s Bench can be decided only by a Constitution Bench under Article 145(3). In fact, the Constitution Bench under Article 145(3) decides substantial questions of law as to the interpretation of the Constitution.

Closer scrutiny would reveal that none of these points comes under the category of substantial question of law within the meaning of that Article. As a matter of fact, the Court has only brought out the inherent meaning and amplified the dimensions of it in Articles 200 and 201 with the objective of preventing the subversion of the constitutional order. By doing so, the Court has restored sanity to the constitutional system which had come under severe strain due to plain arbitrariness and deliberate inaction on the part of constitutional authorities.

Decades ago, India had seen the unedifying spectacle of a President sitting on the postal Bill for years, with a helpless Union government unable to do anything. This underscores the need to make suitable changes in the relevant provisions of the Constitution relating to the issue of assent to Bills, whether they are passed by Parliament or a State legislature. The cue must be from this judgment. Therein lies the importance of this judgment.

The importance of the top court’s judgment on the Tamil Nadu Governor lies in the need to make suitable changes in the Constitution that relate to the issue of assent to Bills

Supreme Court Mandates Preliminary Inquiry Before FIR In Certain Offences Related To Speech Expressions

With the aim of curbing frivolous FIRs against speeches, writings and artistic expressions, the Supreme Court on Friday mandated that a preliminary inquiry must be conducted before lodging the FIR, if the offences alleged are punishable with imprisonment between three to seven years.

The Court held so after referring to Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Section 173(3) provides that for offences punishable with imprisonment between three to seven years, the police may conduct a preliminary enquiry within 14 days to establish a prima facie case, with prior approval from a Deputy Superintendent of Police (DSP).

The Court noted that there are certain offences dealing with speech and expressions, which are recognised as reasonable restrictions as per Article 19(2) of the Constitution. If there is an allegation regarding the commission of such an offence, and if it is punishable by 3-7 years, then the police must conduct a preliminary inquiry before registering the FIR. The Court adopted this interpretation to safeguard the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution.

A bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan observed :

“ Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub Section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in sub Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.”

The Court quashed an FIR registered by the Gujarat Police against Congress Rajya Sabha MP Imran Pratapgarhi over his Instagram post featuring a video clip with the poem “Ae khoon ke pyase baat suno” in the background.

Effects of the words must be considered by the police before registering FIR

The Court also observed that while dealing with an allegation of an offence under Section 196 of the Bharatiya Nyaya Sanhita (BNS), which deals with words promoting enmity between communities, the police officer must ascertain the effects of the words before setting the criminal law into motion.

"The police officer to whom information is furnished will have to read or hear the words written or spoken, and by taking the same as correct, decide whether an offence under Section 196 is made out. Reading of written words, or hearing spoken words will be necessary to determine whether the contents make out a case of the commission of a cognizable offence. The same is the case with offences punishable under Sections 197, 299 and 302 of the BNS. Therefore, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry which is not permissible under sub-Section (1) of Section 173."

Court explains changes from S.154 CrPC

Section 173(1) of the BNS mandates the registration of an FIR if the information received discloses a cognizable offence. The court noted that provision is largely similar to Section 154 of the CrPC, which was in force before the introduction of the BNS. Under this section, the police are duty-bound to register an FIR upon receiving credible information about a cognizable offence.

However, the Court emphasized the distinction introduced by Section 173(3) of the BNS. Unlike the CrPC, the BNS includes a specific provision allowing for a preliminary inquiry before registering an FIR in certain circumstances.

“sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the CrPC. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter.”

The Court reasoned that the purpose of this provision is to act as a safeguard against the misuse of the legal process.

“Therefore, in a case where sub-Section (3) of Section 173 is applicable, even if the information pertaining to the commission of any cognizable offence is received, an inquiry can be conducted to ascertain whether a prima facie case exists for proceeding in the matter. The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of the cognizable offence.”

The Court also elaborated on the distinction between a preliminary inquiry under Section 173(3) and the assessment required under Section 154 of the CrPC. It referred to the guidelines laid down in the case of Lalita Kumari v. Government of U.P. (2014) case, as per which a preliminary inquiry is permissible only when the information received does not disclose a cognizable offence but suggests the need for further inquiry to determine the nature of the offence. However, under the BNS, the inquiry under Section 173(3) extends further, allowing the police to evaluate whether there is sufficient basis to proceed with the registration of an FIR, the Court said.

In the facts of the present case, the Court opined that offences alleged against Pratapgarhi were not made out even without taking recourse to Section 173)(3) of the BNSS.

Other reports about the judgment can be read here.

Case no. – Crl.A. No. 1545/2025

Case Title – Imran Pratapgadhi v. State of Gujarat

Citation : 2025 LiveLaw (SC) 362

Click here to read the judgment

https://www.livelaw.in/top-stories/calling-article-142-nuclear-missile-extremely-problematic-sibal-on-vice-presidents-comments-against-judiciary-289758

Dr Ambedkar Warned Against Allowing Parliament To Liberally Amend Constitution Justice BR Gavai

The Supreme Court Judge, Justice BR Gavai recently spoke extensively on the contributions of Dr BR Ambedkar in shaping the Constitution and rights of the citizens as they exist today.

Speaking at the First Dr Ambedkar Memorial Lecture organised by Dr Ambedkar International Centre (DAIC), Justice Gavai emphasised how Ambedkar viewed the development of society by how it treated its women.

He also credited the efforts of Ambedkar in ensuring the upliftment of the marginalised sections and how the Country today has witnessed the inclusion of great leaders and thinkers from these sections of the society. He expressed :

"Dr. Ambedkar always said that the women in this country are more oppressed than the Dalits and he, therefore, stated the furtherance of their upliftment was also a basic necessity."

"We have had a woman Prime Minister Smt. Indira Gandhi. We had hundreds of IAS officers, IPS officers, Chief Secretaries, DGPs belonging to Scheduled Castes, Scheduled Tribes, and OBCs."

"We have had the Dalit Chief Justice of India, Justice KG Balakrishnan. The country is having a Prime Minister, who comes from a humble background belonging to Backward Classes and who takes pride in saying that it is because of the Constitution of India, that he could be the Prime Minister of India."

"Speaking for myself, I was fortunate to have been born to a father who worked with Dr. Ambedkar and served as one of the soldiers in the fight for social and economic justice. I am here only because of Dr. Ambedkar and the Constitution of India."

He also mentioned other leaders and thinkers, such as two Presidents who belonged to Scheduled Castes, viz., Shri K.R. Narayanan and Shri Ram Nath Kovind and two women presidents of the Country, Smt. Patribha Patil and Smt Draupadi Murmu (also from Scheduled Tribe category).

Dr Ambedkar On The Perils Of Allowing The Parliament To Liberally Amend The Constitution

Justice Gavai recalled how Dr Ambedkar faced extreme criticism from socialists as well as the communists for making the procedure for constitutional amendments rigid. In the Constituent Assembly, it was argued that it was difficult to get a two-third majority of the Members present in both the Houses and a simple majority of the total Members. It was also argued that it was very difficult to get ratification by half of the State Legislatures. It was, therefore, argued that such a rigid provision would not permit the Constitution to adapt to the changing needs.

Tackling these claims, Ambedkar, while acknowledging the need to ensure that the Constitution remained an ever-evolving document, warned that it cannot be used by political parties to further their political agendas. Justice Gavai explained :

"Dr. Ambedkar said that, today the Constituent Assembly was sitting as an independent body without having any political ideologies, without any particular agenda. But if the power is given to the Parliament to amend the Constitution very liberally, then the danger of a particular political party, finding it difficult to implement its agenda, amending the Constitution in order to implement its ideology cannot be ruled out. He said that this could not be permitted."

"Though a provision has to be made to adapt to the changing needs, the Constitution cannot be permitted to be amended at the sweet will of the majority."

Justice Gavai also mentioned how in the Keshavananda Bharati Case, the Supreme Court in a sharp division of 6 to 7 held that though the Parliament has the power to amend the Constitution and even take away the fundamental rights, held that it does not have the power to amend the basic structure of the Constitution.

Lauding the far-sightedness of Dr Ambedkar, Justice Gavai said that the country has continued to remain united despite all the internal and external challenges it faced.

Referring to his speeches made on 17th December 1946, 4th November 1948 and on 25th November 1949, Justice Gavai termed Ambedkar to be a 'great visionary'. He added, "He (Ambedkar) had stated that the country would be strong and united in the time of peace as well as war. Though in the last 75 years, the country has faced various external aggressions and internal disturbances, the country remained united and strong. When we compare ourselves with the neighbouring countries, we would find as to how relevant his proposals were."

Ambedkar On DPSPs

Justice Gavai also shed light on how Ambedkar dealt with the criticism on the Directive Principles of State Policies.

He said : "There were allegations made against Dr. Ambedkar that Directive Principles are nothing else but a pious declaration having no binding force. Replying the said criticism, he said,:

“These Directive Principles have also come up for criticism. It is said that they are only pious declarations. They have no binding force. This criticism is of course, superfluous. The Constitution itself says so in so many words.

If it is said that the Directive Principles have no legal force behind them, I am prepared to admit it. But I am not prepared to admit that they have no sort of binding force at all. Nor am I prepared to concede that they are useless because they have no binding force in law.”

He said that the Directive Principles are like an instrument of instructions to the executives and legislature who will be discharging their duties in the future. He said that we are not drafting the Constitution to enable a particular party to come into power, rather, we are drafting the Constitution to provide what would be the polity in the future and for guidance to the executives and administration.

“But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instruction which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a Court of Law. But he will certainly have to answer for them before the electorate at election time. What great value these directive principles posses will be realized better when the forces of right contrive to capture power”.

Why Article 32 Was The Most Important Fundamental Right As Per Ambedkar?

For Dr. Ambedkar, Article 32 of the Constitution on the guarantee of constitutional remedies was the gaurdshield to all other fundamental rights.

Justice Gavai mentioned that when Article 32, which was Article 25 in the draft Constitution, came to be discussed, there were lengthy discussions. Some were of the opinion that it was not necessary to name the writs in Article 32. It was also argued that the writs could also be enforced by taking recourse to provisions of the Specific Performance Act and so on.

"However, Dr. Ambedkar negatived all these contentions and observed thus:

“Now, Sir, I am very glad that the majority of those who spoke on this article have realised the importance and the significance of this article. If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.”

Justice Gavai further quoted Ambedkar on how writs could not be taken away by any legislature :

“It is not that the Supreme Court is left to be invested with the power to issue these writs by a law to be made by the legislature at its sweet will. The Constitution has invested the Supreme Court with these rights and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the Legislature. This, in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual.”

Ambedkar On 'Drifting Committee' Remark & Criticism By Socialists And Communalists

Justice Gavai referred to a crucial instance where Ambedkar was criticised as turning the drafting committee into a 'drifting committee', as according to some members, discussions often deviated from the main issues. He recalled :

"On 25th November 1949, one of the most important speeches was delivered by Dr. Ambedkar in the Constituent Assembly that every student of Constitutional Law must read through thoroughly. He refers to the history of the Drafting Committee, then to the criticism by one of the members, who I would not like to name, who said that the Drafting Committee was nothing but a drifting committee. Dr. Ambedkar said that he takes it as a compliment though he knew that it was not a compliment. He said that drifting with mastery, and with an aim is like a compliment."

Ambedkar also replied to the criticism made by socialists and communalists in the following essence:

"Then there were certain criticisms by the socialists, who wanted the Fundamental Rights to be absolute, and without restrictions. Dr. Ambedkar answered that criticism by stating that the socialists, if they come to power, would like to nationalise all the properties of the private individuals and if they don't come to power, they want to have an absolute right to speak anything against the government. He criticised the communalists, saying that if the communalist ideology is accepted, the very concept of “Liberty, Equality, and Fraternity” that we want to achieve would be thrown away in the dustbin. "

How Ambedkar Tackled The Criticism Of The Constitution Titling More Towards The Centre Than The States

Justice Gavai also mentioned how much debate was done within the drafting committee over the issue of the centre getting more powers than the states. Some argued that this would virtually make the state governments. toothless. Justice Gavai quoted Ambedkar on his answer to such concerns :

“A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relationship between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co equal in this matter. It is difficult to see how such a Constitution can be called centralism.”

He further said that - “It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution.”

Justice Gavai further elaborated that Dr. Ambedkar stated that the second charge against the draft Constitution is that the Centre has been given the power to override the States. He explained that such a power is not given in normal circumstances, but is given only in a crisis, that may be external war or internal disturbances and this was necessary to keep the country united. He then quoted Ambedkar :

“There can be no doubt that in the opinion of the vast majority of the people, the residual loyalty of the citizen in an emergency must be to the Centre and not to the Constituent States. For it is only the Centre which can work for a common end and for the general interests of the country as a whole. Herein lies the justification for giving to the Centre certain overriding powers to be used in an emergency.”

Political Democracy Can Only Last If There Is Social Democracy :

Justice Gavai explained how Ambedkar envisioned the link between political democracy of our country with social democracy. He emphasised :

"He (Ambedkar) refers to Indian history as to how many times we were invaded and how many times we lost our freedom, and he warns us that the freedom we have got and the democracy that we have so liberally given to ourselves, should not be permitted to be again taken away as has happened in the past. And, therefore, he said that what we must do is not to be contented by mere political democracy. Dr. Ambedkar was of the view that Political democracy cannot last unless there lies at the base of it social democracy. He (Ambedkar) states:

“What does social democracy mean? It means a way of life, which realises liberty, equality, and fraternity as the principles of life. These principles of liberty, equality, and fraternity as the principles of life, and these principles are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.”

https://www.livelaw.in/top-stories/dr-ambedkar-warned-against-allowing-parliament-to-liberally-amend-constitution-justice-br-gavai

The full text of the speech can be read here.

2025 ഏപ്രിൽ 17, വ്യാഴാഴ്‌ച

MadrasHighCourt Minority Institution Govt Fund Appointment Open Too All Candidates

The Madras High Court recently held that while minorities have the right to establish and administer educational institutions, the appointment in these institutions if aided by the government, could not be limited to a particular religious denomination.

Justice GR Swaminathan observed that when the institution was receiving funds from the state exchequer, the principles of secularism demanded that the appointment process be open to all.

“ To say that only a candidate of a particular religious denomination is entitled to apply for a post runs counter to constitutional morality. When the salary is paid out of the State exchequer, the elementary principles of secularism demand that the process of appointment is thrown open to all eligible candidates,” the court said.

The court was hearing a challenge made to the appointment of teachers and correspondents to the educational institutions run by the Tirunelveli Diocese. The petitioner, Manohar Thangaraj, who was the treasurer of the diocese argued that the Rt. Rev. Bishop was taking advantage of the situation regarding the administration of the diocese and unilaterally appointing correspondents and teachers.

The Bishop opposed the petition and argued that the manager and the correspondents of the school were appointing teachers based in the diocesan seniority list. It was further argued that the power to appoint teachers is vested with the correspondents who have not been made respondents in the present case. Thus, it was argued that the present litigation fails for non-joinder of parties and since Thangaraj had no locus standi.

The court however overruled the objections raised by the Bishop. On perusing the documents, the court observed that the correspondents were under the Bishop. The court also noted a circular issued by the Bishop inviting candidates to fill up the vacancies in the teaching post. Thus, the court noted that Thangaraj was justified in apprehending that the recruitment drive was afoot.

The court added that though minority institutions had an autonomy in administration, it could not dispense with the requirement to act fairly and transparently. The court held that it could exercise its powers of judicial review under Article 226 of the Constitution if there was a violation of right of an individual eligible candidate.

The court added that the state was paying the teacher's salary only with the expectation that the institution will produce students of caliber. The court noted that minority institutions could not fall below the standard of excellence of other institutions under the guise of exclusive management and though the management must be left to them, the institution must be compelled to step up with others.

The court observed that the right of the institutions to receive grant from the government is coupled with the obligation to appoint competent teachers and this obligation could be discharged only if there is a wide choice of candidates. The court thus held that the appointment of candidates from the diocese list would not be good for the administration.

Thus, holding the appointment process to be discriminatory, the court allowed the petition. The court directed the diocese to notify the vacancies so that every eligible candidate irrespective of religion, caste, and other denominational background could apply.

Counsel for the Petitioner: Mr.G.Prabhu Rajadurai

Counsel for the Respondent: Mr.P.P.Alwin Balan, Mr.S.Parthasarathy, Mr.G.V.Vairam Santhosh Additional Government Pleader, Mr.V.Prabhakar, Senior Counsel for K.K.Udayakumar

Citation: 2024 LiveLaw (Mad) 327

Case Title: Manohar Thangaraj v Rt.Rev.ARGST Barnabas and Others

Case No: WP(MD)No.15201 of 2024

https://www.livelaw.in/high-court/madras-high-court/madras-high-court-minority-institution-govt-fund-appointment-open-to-all-candidates-267519

2025 ഏപ്രിൽ 15, ചൊവ്വാഴ്ച

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ഫെഡറലിസത്തിന്റെ ചരിത്രത്തിലെ സുപ്രധാനമായ * വിധിന്യായങ്ങളിൽ ഒന്നാണ് തമിഴ്‌നാട് സംസ്ഥാന സർക്കാർ നൽകിയ കേസിൽ ചൊവ്വാഴ്ചയുണ്ടായ സുപ്രീംകോടതി വിധി തമിഴ്‌നാട് നിയമസഭ അംഗീകാരം നൽകിയ ബില്ലുകളിൽ ഒപ്പിടാതെയോ തീരുമാനം എടുക്കാതെയോ അനന്തമായി നീട്ടി വച്ച ഗവർണർ ആർ എൻ രവിയുടെ നടപടിയാണ് സർക്കാർ സുപ്രീംകോടതിയിൽ ചോദ്യം ചെയ്തത് ഗവർണറും സംസ്ഥാന സർക്കാരും തമ്മിലുള്ള തർക്കത്തിൽ ഏറ്റവും രൂക്ഷമായ സംഘർഷങ്ങളും അഭിപ്രായ ഭിന്നതകളും അരങ്ങേറിയ സംസ്ഥാനങ്ങളിൽ ഒന്ന്, ഒരുപക്ഷേ കേരളം കഴിഞ്ഞാൽ തമിഴ്‌നാട് ആയിരുന്നു.

സർക്കാരിന്റെ നിരവധി ബില്ലുകളും നിർദേശങ്ങളും പദ്ധതികളും ഗവർണർ അനിശ്ചിതമായി തടഞ്ഞു വയ്ക്കുന്നതിൽ ഗതികെട്ട തമിഴ്‌നാട് സർക്കാർ 2023 ഒക്ടോബർ 31ന് സുപ്രീംകോടതിയെ സമീപിച്ചു. 2020 ജനുവരി 11 മുതൽ 2023 ഏപ്രിൽ 28 വരെയുള്ള സമയത്തിനിടയിൽ തമിഴ്‌നാട് നിയമസഭ അംഗീകാരം നൽകിയ 10 ബില്ലുകൾ ഗവർണർ തടഞ്ഞു വച്ചു മറ്റൊന്ന്, 1988 ലെ അഴിമതി നിരോധന നിയമത്തിനു കീഴിൽ പൊതു പ്രവർത്തകർക്ക് (Public Servants) എതിരെ ക്രിമിനൽ നടപടി സ്വീകരിക്കുന്നതിനുള്ള അനുമതി തേടി കൊണ്ടുള്ള ഫയലുകൾ ഗവർണർ ഒരു നടപടിയും സ്വീകരിക്കാതെ മാറ്റിവച്ചു. അതു കൂടാതെ, പബ്ലിക് സർവീസ് കമിഷനിലേക്കുള്ള അംഗങ്ങളുടെ നിയമനത്തിലും ഒരു നടപടിയും സ്വീകരിച്ചില്ല. അതു പോലെ തന്നെ തടവുകാരുടെ ശിക്ഷ ഇളവ് ചെയ്‌തു മോചനത്തിനുള്ള ഫയലും ഗവർണർ അനക്കിയില്ല ഇതാണ് തമിഴ്നാട് സർക്കാർ സുപ്രീംകോടതിയിൽ ഉന്നയിച്ചത്. കോടതി പരിശോധിച്ചത് ഗവർണർമാരുടെ ഇതിനുള്ള അധികാരാവകാശങ്ങളാണ്. പ്രധാനമായും അനുച്ഛേദം 200 പ്രകാരം ഗവർണർക്ക് തീരുമാനമെടുക്കാതെ അനന്തമായി നീട്ടിവയ്ക്കാൻ കഴിയുമോ,? ഒരു ബിൽ സംസ്ഥാന മന്ത്രിസഭയിലേക്ക് തിരിച്ചയക്കുമ്പോൾ അതിനു കാരണം പറയേണ്ടതുണ്ടോ? അതോ വെറുതെ തിരിച്ചയച്ചാൽ മതിയോ?, സംസ്ഥാന മന്ത്രിസഭ വീണ്ടും ഗവർണറുടെ അനുമതിക്ക് അയച്ചാൽ എന്താണ് ഗവർണർക്ക് ചെയ്യാൻ കഴിയുക,? അത് വീണ്ടും പിടിച്ചു വയ്ക്കാൻ കഴിയുമോ,? എപ്പോഴൊക്കെയാണ് രാഷ്ട്രപതിയുടെ അനുമതിക്കായി ഗവർണർക്ക് അയക്കാൻ കഴിയുക? തുടങ്ങിയ ഭരണഘടനാപരമായ ചോദ്യങ്ങൾക്കാണ് സുപ്രീംകോടതി ഇപ്പോൾ ഉത്തരം നൽകിയിരിക്കുന്നത് ജസ്റ്റിസ് ജെ ബി പർദ്ദിവാല, ആർ മഹാദേവൻ എന്നിവരുടെ ബെഞ്ച് ആണ് ഗവർണറുടെ നടപടി തെറ്റാണ് എന്നു വിധിച്ചത് . മാത്രവുമല്ല, അനുച്ഛേദം 200 അനുസരിച്ചുള്ള വിവേചനാധികാരം ഉപയോഗിച്ച് ഗവർണർ അംഗീകാരം നൽകാതെ തടഞ്ഞു വച്ച എല്ലാ ബില്ലുകൾക്കും സുപ്രീംകോടതി അനുമതി നൽകുക കൂടി ചെയ്‌തു. അതായത് എല്ലാ ബില്ലുകളും പാസായതായി കോടതി പ്രഖ്യാപിച്ചു ബില്ലുകൾ അനന്തമായി പിടിച്ചു വയ്ക്കരുതെന്നും മൂന്നു മാസത്തിനകം തീരുമാനം എടുക്കണമെന്നും വിധിയിൽ വ്യക്തമാക്കി നിർണായകമായ മറ്റൊരു കാര്യം, ഗവർണർ ചില ബില്ലുകൾ രാഷ്‌ടപതിക്ക് അയച്ചിരുന്നു. അതിന്മേൽ രാഷ്ട്രപതി എന്തെങ്കിലും നടപടി എടുത്തിട്ടുണ്ടെങ്കിൽ അത് നിലനിൽക്കില്ല എന്നു കൂടി സുപ്രീംകോടതി വിധിച്ചു.

നിയമനിർമാണത്തിൽ ഗവർണറുടെ പങ്ക് എന്നത് എക്കാലത്തും വിവാദാസ്പദമാണ്. ഏതൊരു ബില്ലും നിയമം ആകണമെങ്കിൽ നിയമസഭ അത് അംഗീകരിച്ചാൽ ഗവർണറുടെ അനുമതി കൂടി വേണം. അനുച്ഛേദം 200 അനുസരിച്ച് ഒരു ബില്ല് നിയമസഭ അംഗീകരിച്ച് ഗവർണറുടെ അനുമതിക്കായി അയച്ചു കഴിഞ്ഞാൽ ഗവർണർക്ക് നാല് വഴികളുണ്ട്. ഒന്നുകിൽ അത് അംഗീകരിച്ച് ഒപ്പ് വയ്ക്കാം. അപ്പോൾ ആ ബിൽ നിയമമാകും രണ്ട്, തീരുമാനം എടുക്കാതെ പരിഗണനയ്ക്കു വയ്ക്കാം. മൂന്ന്. ചില ഭേദഗതികളോ ചില മാറ്റങ്ങളോ പുനഃപരിശോധനയോ ആവശ്യപ്പെട്ടു കൊണ്ട് തിരിച്ചയക്കാം. നിയമ സഭ ഈ നിർദേശങ്ങൾ ഒന്നും സ്വീകരിക്കാതെ അതു പോലെ തന്നെ വീണ്ടും അയച്ചാൽ ഗവർണർ അനുമതി നൽകിയേ മതിയാകൂ. വീണ്ടും തിരിച്ചയക്കാനോ എടുത്തു വയ്ക്കാനോ അധികാരമില്ല. നാല്, രാഷ്ട്രപതിയുടെ അനുമതിക്കായി സമർപ്പിക്കാം ഒന്നും ചെയ്യാതെ വയ്ക്കുന്നതിനെ 'പോക്കറ്റ് വീറ്റോ' എന്നാണ് കോടതി വിശേഷിപ്പിച്ചത്. ജസ്റ്റിസ് പർദ്ദിവാല എഴുതിയ വിധിന്യായത്തിൽ അസന്ദിഗ്‌ധമായി പ്രഖ്യാപിച്ചത് അങ്ങനെ 'പോക്കറ്റ് വീറ്റോ' ' ചെയ്യാനോ അതിനുള്ള പരിപൂർണമായ അധികാരമോ' ഗവർണർക്ക് ഇല്ല എന്നാണ്. രാഷ്ട്രപതിയുടെ പരിഗണനയ്ക്ക് വിടണമെങ്കിൽ അത് ആദ്യമേ തന്നെ ചെയ്യണം, നിയമസഭ രണ്ടാമതും സമർപ്പിച്ചാൽ പി ന്നെ ഗവർണർക്ക് ആ അധികാരം വിനിയോഗിക്കാൻ സാധിക്കുകയില്ല. അനുച്ഛേദം 200 ഇന്ത്യയു ടെ ഫെഡറൽഘടനയിൽ നിർണായകമായ സ്വാധീനം ചെലുത്തുന്നതു കൊണ്ട് ഓരോ സന്ദർഭത്തിലും ഗവർണർക്ക് തീരുമാനം എടുക്കാനുള്ള പരമാവധി സമയപരിധി കൂടി (ഒന്നുമുതൽ മൂന്ന് മാസം ഒരെ ) സുപ്രീംകോടതി നിശ്ചയിച്ചു.

വളരെ രൂക്ഷമായ വിമർശമാണ് സുപ്രീംകോടതി ഗവർണർക്കു നേരെ നടത്തിയത് ജനങ്ങളുടെ ഇഛയെ പ്രതിഫലിപ്പിക്കുന്നത് നിയമസഭയാണോ കേന്ദ്ര ഭരണകൂടം നിയമിക്കുന്ന ഗവർണർ ആണോ എന്ന ചോദ്യത്തിന് സംശയത്തിന് ഇടനൽകാത്ത വിധം സുപ്രിംകോടതി ഉത്തരം പറഞ്ഞു. അത് ജനങ്ങൾ തെരഞ്ഞെടുക്കുന്ന ജനപ്രതിനിധികൾ അടങ്ങിയ നിയമനിർമാണ സഭയാണ്. ഗവർണർ നിയമ നിർമ്മാണ സഭയുടെ ഉപദേശ നിർദേശങ്ങൾക്ക് അനുസരിച്ചു പ്രവർത്തിച്ചേ മതിയാകൂ സുപ്രീംകോടതി ഒന്നു കൂടി എടുത്തു പറഞ്ഞു' ഗവർണർ രാഷ്ട്രീയ പരിഗണനകളാൽ അല്ല നയിക്കപ്പെടേണ്ടത്, ഭരണഘടനാ തത്വങ്ങളാലാണ്. കേന്ദ്ര സർക്കാരിനു വേണ്ടി അറ്റോർണി ജനറൽ ഉയർത്തിയ വാദങ്ങളെല്ലാം സു പ്രീംകോടതി തള്ളി.

കേന്ദ്ര-സംസ്ഥാന ബന്ധങ്ങളിലെ ഏറ്റവും പ്രധാനപ്പെട്ട വിഷയമായി ഗവർണർമാർ മാറുന്നു

എന്നും കേന്ദ്രം തങ്ങളുടെ രാഷ്‌ട്രിയ ലക്ഷ്യങ്ങൾ ക്ക് ഗവർണർമാരെ ഉപയോഗിക്കുന്നു എന്നും സർക്കാരിയ കമീഷൻ നിരീക്ഷിക്കുന്നുണ്ട്. അതിനും ദശകങ്ങൾക്കു മുമ്പ് തന്നെ ഭരണ പരിഷ്കാര കമ്മീഷൻ ഗവർണർമാരെ നിയമിക്കാനും നീക്കം ചെയ്യാനുമുള്ള രാഷ്ട്രപതിയുടെ അധികാരം ഫെഡറൽ തത്വങ്ങളുടെ ലംഘനമാണ് എന്ന് പറഞ്ഞിട്ടുണ്ട്. ഗവർണർമാർ കേന്ദ്രം ഭരിക്കുന്ന രാഷ്ട്രീയ കക്ഷികളുടെ ദീർഘകൈയുകളായോ ചട്ടുകങ്ങളായോ പ്രവർത്തിക്കുന്നു എന്നതാണ് എക്കാലത്തും ഗവർണർ പദവിക്ക് എതിരെ ഉയർന്നിരുന്ന ഏറ്റവും വലിയ വിമർശം. അതിൻ്റെ ഏറ്റവും അപലപനീയമായ പ്രയോഗങ്ങളാണ് മോദി ഭരണക്കാലത്ത് പ്രതിപക്ഷ പാർടികൾ ഭരിക്കുന്ന സംസ്ഥാനങ്ങൾക്ക് നേരിടേണ്ടി വന്നത്. അതിന്റെ വലിയ ഇരകളായിരുന്നു കേരളവും തമിഴ്‌നാടും. ഗവർണർ പദവിയിൽ ഇരുന്നു കൊണ്ട് രാഷ്ട്രീയ താൽപ്പര്യങ്ങൾ നിറവേറ്റുന്നവർക്കുള്ള ശക്തമായ തിരിച്ചടിയാണ് സുപ്രീംകോടതിയിൽ നിന്ന് ഉണ്ടായിരിക്കുന്നത്. കേരളം നൽകിയിരിക്കുന്ന കേസുകളിൽ ഇന്ത്യൻ ഭരണഘടനയിലെ ഫെഡറൽ തത്വങ്ങളെ ഉറപ്പിക്കുന്ന നിലയിലുള്ള നിർണായക വിധികൾ സുപ്രീംകോടതിയിൽ നിന്ന് ഉണ്ടായേക്കാം എന്ന പ്രതീക്ഷ നൽകുന്നതു കൂടിയാണ് ഈ വിധി. 'ഭരണഘടന എത്ര നല്ലതായാലും അത് നടപ്പിലാക്കുന്നവർ മോശമാണ് എങ്കിൽ ഭരണഘടനയും മോശമായി തീരും' എന്ന ഡോ. ബി ആർ അംബേദ്‌കറുടെ പ്രശസ്തമായ വാക്യത്തിലാണ് ജസ്റ്റീസ് തന്റെ വിധി ന്യായം അവസാനിപ്പിക്കുന്നത്. ഇത് ആരെയാണ് ഉദ്ദേശിച്ചത് എന്ന് വിധി ന്യായത്തിലൂടെ കടന്നുപോകുന്ന ആർക്കും മനസ്സിലാകും (കേരള ഹൈക്കോടതിയിലെ അഭിഭാഷകനാണ് ലേഖകൻ)

https://www.deshabhimani.com/epaper/newspaper/kottayam/2025-04-09?page=6&type=fullview

2025 ഏപ്രിൽ 14, തിങ്കളാഴ്‌ച

No More Governor Raj Why Supreme Courts Judgment In-TN Governors Case Us Historic

Like 'Bulldozer Raj', 'Governor Raj' was a pernicious trend which was torpedoing the Constitution, although in a manner more imperceptible. Governors, who are not more than Constitutional figureheads, were increasingly interfering with the administration of State Governments, and creating roadblocks. A recurring phenomenon was Governors sitting indefinitely on Bills passed by State Legislatures, neither granting assent nor returning them with reasons — effectively stalling the legislative process. In States like Tamil Nadu and Kerala, the bills remained in limbo for as long as three to four years. Strikingly, these delays occurred only in the States governed by parties opposed to the one in power at the Centre, raising concerns that the Union Government was using the Governor as an agent to meddle in State affairs. At stake were two foundational constitutional principles — the primacy of the legislature as an expression of the people's will, and the federal structure of governance.

The Supreme Court's response to this situation was cautious and incremental. Mindful that it was dealing with a high constitutional authority, the Court initially chose the path of deference and tried to diffuse the situation using its wise counsel. Therefore, in April 2023, in the case against the Telangana Governor, the Supreme Court, instead of passing any categorical direction, reminded the Governor that Article 200 of the Constitution obliged that a decision on the Bill has to be taken “as soon as possible”. However, on finding that this advice was not being heeded to, a few months later, in November 2023, the Supreme Court gave a stronger response in the Punjab Governor's case, sternly observing in its judgment that Governors, as unelected heads, cannot veto the legislature by simply withholding assent. If they choose to withhold assent, then they must promptly return the bills to the legislature with reasons, the Court stated in this judgment.

The Court hoped that its judgment in the Punjab Governor case might send a strong message to the Governors of Tamil Nadu and Kerala, who were then facing writ petitions filed by the State Governments in the Supreme Court over the delay in clearing bills. In fact, the Court once orally said that the Kerala Governor should read the judgment in the Punjab Governor case and act accordingly.

To circumvent the judgment in the Punjab Governor case, a new device was invented - reference to the President. Thus, the Bills, which were kept pending for several months, were referred to the President by the Governors of Tamil Nadu and Kerala. That is one of the reasons why the Supreme Court in the judgment in the TN Governor case observed that the Governor acted without bona fides. Because, the Bills were sent to the President on November 28, 2023 within a few days the judgment in the Punjab Governor case was uploaded. Also, the very same Bills were by that time re-enacted by the Assembly.

It is in this backdrop that we must understand the Court's judgment in the Tamil Nadu Governor's case (State of Tamil Nadu vs Governor of Tamil Nadu and others, pronounced on April 8, 2024, by bench of Justice JB Pardiwala and Justice R Mahadevan). The Court's assertiveness was not by choice, but by necessity — a response to the repeated, brazen disregard of its earlier appeals. As explained above, its response was graded. To awaken those pretending to be asleep, the Court had no choice but to drop a bombshell.

The Court was confronted with a situation where the gaps and silences in the Constitution — left by the framers in the hope that those occupying high offices would act with sagacity — were being exploited to undermine the spirit of democracy. The Tamil Nadu Governor's argument was that since he merely declared the withholding of the assent and did not expressly send the bills back to the Assembly, the Assembly could not re-enact them. The Court rightly identified the danger in accepting this argument- it would allow the Governor to engineer an indefinite stalemate on the legislative process. It must be noted that the very same argument was rejected in the Punjab Governor's case. Yet, the TN Governor parroted the very same argument. Therefore, the Court held that withholding of the assent is not an independent act in itself and it has to be coupled with the sending back of the bills to the Assembly as per the proviso to Article 200. Such an interpretation is necessary to ensure that the legislative process does not grind to a halt.

The Court also realised that the reference to the President was a newly discovered mischief to stall the bills. To ensure that this route is not abused, the Court was compelled to delineate the contours of this power. It held that the reference to the President has to be done as the first option itself and cannot be done once the Bills have been re-enacted by the Assembly. This is an interpretation which flows straightly from a conjoint reading of both proviso of Article 200.

The Court explained that the Governor cannot be allowed to become a "super constitutional figure" and "collude with the Union Cabinet".

If the power to withhold assent to bills or to reserve them for the consideration of the President is construed as falling within the exclusive discretionary domain of the Governor, who would be free to decide a course of action notwithstanding the aid and advice of the Council of Ministers, it would have the potential of turning him into a superconstitutional figure, having the power to bring to a complete halt, the operation of the legislative machinery in the State. The Governor cannot be vested with such a power, the exercise of which would enable him to collude with the Union Cabinet and ensure the death of any and all legislation initiated by the State.

Finally, the most important takeaway from the judgment- the laying down of the strict timelines for the Governor and the President to act on the Bills as per Articles 200 and 201 respectively. This was crucial to ensure that there was no indefinite 'pocket veto' over the Bills. Without enforceable timelines, its judgment risked becoming a paper declaration without real-world consequences, as the previous instances of transgressions showed. The Court's affirmation that the Governor has no discretion in the exercise of powers under Article 200 and that he has to act as per the aid and advice of the State Council of Ministers also came as a timely reminder.

The Court's declaration of deemed assent for the ten bills was extraordinarily bold. Once it was found that the reference of the Bills was unconstitutional, this was the natural and logical consequence. Otherwise, the judgment would have remained only academic, without actual relief to the affected party. The Court also noted that the Governor has been repeatedly violating the Supreme Court's directives and has been acting without bonafides. It went to the extent of stating that the Governor cannot be trusted anymore.

"The conduct exhibited on part of the Governor, as it clearly appears from the events that have transpired even during the course of the present litigation, has been lacking in bonafides. There have been clear instances where the Governor has failed in showing due deference and respect to the judgments and directions of this Court. In such a situation, it is difficult for us to repose our trust and remand the matter to the Governor with a direction to dispose of the bills in accordance with the observations made by us in this judgment. Article 142 empowers this Court to do complete justice and in the facts of the present case, more particularly, in light of the fact that the option of granting assent to the repassed bills was the only constitutionally permissible option available with the Governor, we deem it absolutely necessary and appropriate to grant that very relief by exercising our extraordinary powers. No meaningful purpose would be served by keeping the bills, some of which have already been pending for incredulously long periods, pending for more time. Therefore, we deem the assent to have been granted.

'There is no unfettered power' & 'Nobody is above the law' - these two hallowed principles permeate the judgment. Yes, the Court's directions were extraordinary and unprecedented, which some may argue to be verging on an overreach. But the Court's intervention must be viewed in the context of an equally extraordinary constitutional crisis — one never envisaged by the Constitution's framers. The indefinite withholding of assent by Governors is a practice that strikes at the very root of representative democracy. In that light, the Court's intervention was not just warranted but necessary. After all, the Courts' directions are not causing any prejudice to anyone — they only further the cause of electoral democracy and enhance the accountability of constitutional offices.

https://docs.google.com/document/d/1qm8kOMJ0ZMPzu0piM5A0JBAFjjsBB5BZsyuVo8tRPo4/edit?usp=drivesdk

2025 ഏപ്രിൽ 7, തിങ്കളാഴ്‌ച

Supreme Court Sets Aside TN Governors Reservation Of 10 Bills For President Says Gqovernor Acted Without Bonafides-288744

The Supreme Court today (April 8) held that the action of the Tamil Nadu Governor Dr RN Ravi withholding assent for 10 bills, the oldest of them pending since January 2020, and reserving them to the President after they were re-enacted by the State Legislature is "illegal and erroneous" in law and liable to be set aside.

Any consequential steps which might have been taken by the President on the said ten bills were also declared non-est in law.

The Court declared that the ten Bills would be deemed to have received the assent of the Governor when they were presented in the second round after they were passed again by the State Assembly.

A bench of Justices JB Pardiwala and R Mahadevan held that the Governor did not act with bona fides, as the bills were sent to the President, after the Governor himself sat over them over a long time, and were reserved for the President soon after the Supreme Court's judgment in the Punjab Governor's case, which held that the Governors cannot veto the bills by sitting over them.

No pocket veto or absolute veto on bills

The judgment authored by Justice Pardiwala held that there is no concept of "absolute veto" or "pocket veto" under the Constitutional scheme. As per Article 200 of the Constitution, the Governor is expected to take one of the three courses of action on bills - grant assent to bills, withhold assent to bills or reserve the bills for the President. The Court held that the Bill can be reserved for the President only at the first instance.

"As a general rule, it is not open for the Governor to reserve a Bill for the President after the bills have been re-presented by the Government after being passed again by the Assembly. The only exception is when the bill presented in the second round is different from the first version," Justice Pardiwala read out from the judgment.

If the Governor withholds assent to the bill, then they must be sent to the Assembly

The Court also held that the option under first proviso to Article 200 is not an independent option, and that this must be exercised in conjunction with the power in the substantive clause of Article 200. This means that once the Governor declares that he was withholding assent to the bills, then he must send back the bills to the assembly for reconsideration. In this case, the Attorney General had argued that when the Governor declared that he was withholding assent, he did not send them to the Assembly, and hence it was not open for the Assembly to re-enact them. This argument was rejected.

Timelines laid down

In the judgment, the Court also laid down timelines for the Governors's decision under Article 200 on the bills sent by the Assembly, as follows :

1. In case of withholding assent and reserving it for the President with the the aid and advice of the council of ministers, the Governor has to take a decision with a period of maximum one month.

2. In case of withholding of bills or reservation for the President contrary to the advice of State Government, the Governor shall take decision within a period of maximum three months.

3. In case of presentation of the bill after re-consideration by the state assembly, the bills are to be assented to by the Governor within one month.

Governor has to act as per the aid and advice of the State Government

The Court held that as a general rule, the Governor has to act as per the aid and advice of the Council of Ministers while exercising powers under Article 200. The Governor does not possess any discretion and has to mandatorily act on aid and advice once the bills have been re-enacted.

The only exception is when the Bills fall under the description of the second proviso to Article 200 (bills affecting the powers of the High Court and the Supreme Court).

Conclusions

Justice Pardiwala read out the following conclsuions :

1. The withholding of assent or the reservation of bills for the consideration of the President on 28.11.2023, after their due re-consideration by the State legislature, being in contravention of the procedure prescribed under Article 200, is declared erroneous in law, non-est and thus hereby set aside.

2. As a result of the above finding, any consequential steps that might have been taken by the President on these ten bills is equally non-est and hereby set aside.

3. Having regard to the unduly long period of time for which these bills were kept pending by the Governor, before the ultimate declaration of withholding of assent, and in view of the scant respect shown by the Governor to the decision of this Court in The State of Punjab, and for the other extraneous considerations that appear to be writ large in discharge of his functions, we are left with no choice but to exercise our inherent powers under Article 142 of the Constitution to declare these ten bills to have been deemed to have got assented.

Governors must not create roadblocks, must respect the will of the people

In the judgment, the Court reminded the Governors of their roles and duties, by observing :

"We are not undermining the office of the Governor. All we say is that the Governor must act with due deference to the settled conventions of the Parliamentary democracy, respecting the will of the people expressed through the legislature as well as the elected government responsible to the people. He must perform his role of a friend, a philosopher and guide, with dispassion, guided not by considerations of political expediency but by the sanctity of the Constitutional oath he undertook. In times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the state machinery by his sagacity and wisdom, and not bring it to a standstill. He must be the catalyst and not the inhibitor. All his actions must be taken keeping in mind the high constitutional office he occupies. It is imperative that all his actions must be guided by true allegiance to his oath and he faithfully executes his functions. The Governor as the Constitutional head of the State is obliged to accord primacy to the will and welfare of the people of the State and earnestly work in harmony with the State machinery.

The Governor must be conscious to not create roadblocks or chokehold the State legislature in order to thwart and break the will of the people for political ends. The members of the State legislature have been elected by the people of the State as a result of the democratic outcome are better attuned to ensure the well-being of the people. Hence, any expression contrary to the express choice of the people, in other words, the State legislature, would be a renege on the Constitutional oath."

"The Constitutional authorities occupying high offices must be guided by the values of the Constitution. These values that are so cherished by the people of India are a result of years of struggles and sacrifices by our forefathers. When called upon to take decisions, such authorities must not give into ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by the Constitutional oath and the course of actions adopted by them furthers the ideals of the Constitution. "

Justice Pardiwala ended the judgment by quoting BR Ambedkar, "however good a constitution may be, if those who are implementing it are not good, it will prove to be bad"

Live updates from the pronouncement can be read here.

On February 10, a bench of Justices JB Pardiwala and R. Mahadevan reserved judgment on the writ petitions filed by the Tamil Nadu Government against its Governor Dr RN Ravi withholding assent for the bills, the oldest of them pending since January 2020. Once the Bills were re-enacted in a special session by the Government, the Governor sent some of the re-passed laws to the President for reconsideration.

Various constitutional issues concerning the interpretation of Article 200 and factual questions have emerged from the four days of the hearing. The bench formulated eight questions for the parties during the hearing.

To briefly summarise, the petitioners have argued that the action of the Governor sitting over the Bills for 3 years and then one fine day, declaring that he is withholding assent and when the Bills are passed again, reserving it to the President are violative of Article 200. Therefore, the Governor's declaration is held to be void.

As per the petitioners' arguments, the Governor has three options under Article 200 when the Bill is sent to him: assent, reserve for reconsideration of the President and withhold the assent. The State argued that if the Governor reserves it for the President's reconsideration, he has to do so at the first instance. However, if he does not exercise that, the next recourse is to send the Bill to the State legislature. Here, it was argued that as per the Punjab Governor's decision(which was pronounced at a time when the Tamil Nadu Governor decided to send the re-enacted Bills to the President), if the Governor was withholding the assent, then he should return the bills to the assembly.

Whereas, the Respondent submitted that what troubled the Governor was repugnancy with the central laws and nothing else and therefore, in the national interest, he sent it to the President. During the proceedings, the Court had orally remarked that the Governor had adopted his own procedure on withholding assent. The Court had also questioned on the submission of Attorney General, R. Venkataramani, that the Governor found the Bills to be repugnant. It was argued that the Governor by withholding the assent communicated the repugnancy but not for the State legislature to re-enact the Bills subsequent to which it was sent to the President.

The Court asked if the Governor had found the Bills repugnant, why did he continue to withhold them without informing the Legislative Assembly.

Senior Advocates Mukul Rohatgi, Rakesh Dwivedi, P Wilson appeared for the State. Attorney General R Venktaramani appeared for the Governor.

Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023 & THE STATE OF TAMIL NADU v. THE VICE CHANCELLOR AND ORS| W.P.(C) No. 1271/2023

In a significant judgment underscoring the constitutional role of Governors, the Supreme Court has called upon them to act with "due deference" to the principles of parliamentary democracy and the will of the people, warning against actions that may obstruct or undermine the functioning of elected state governments.

"We are not undermining the office of the Governor," the Court observed while delivering a strong reminder of the limits and responsibilities of the post. "All we say is that the Governor must act with due deference to the settled conventions of the Parliamentary democracy, respecting the will of the people expressed through the legislature as well as the elected government responsible to the people."

A bench comprising Justice JB Pardiwala and Justice R Mahadevan made these important observations while declaring as illegal the Tamil Nadu Governor's withholding of the assent on ten bills re-enacted by the State Assembly and their reservation for the President.

The Court highlighted that the Governor is expected to act as a "friend, philosopher and guide" and not as a political actor. His role, the judgment stated, must be “guided not by considerations of political expediency but by the sanctity of the Constitutional oath he undertook.” It added that in moments of political tension, the Governor must work as “a harbinger of consensus and resolution,” using wisdom and discretion to support state governance rather than impede it.

“The Governor must be the catalyst and not the inhibitor,” the Court emphasized, urging that the office should help facilitate the functioning of the state machinery rather than bringing it to a standstill.

Importantly, the judgment cautioned that any attempt by the Governor to stall legislative processes or subvert the electoral mandate would amount to a betrayal of the Constitution:

"The Governor must be conscious to not create roadblocks or chokehold the State legislature in order to thwart and break the will of the people for political ends... any expression contrary to the express choice of the people, in other words, the State legislature, would be a renege on the Constitutional oath."

The Court also stressed that those holding high constitutional offices must be guided by the enduring values of the Constitution, which were born out of the struggles and sacrifices of India's founding leaders. "When called upon to take decisions, such authorities must not give into ephemeral political considerations but rather be guided by the spirit that underlies the Constitution."

Justice J.B. Pardiwala, who authored the judgment, concluded with a poignant quote from Dr. B.R. Ambedkar: “However good a constitution may be, if those who are implementing it are not good, it will prove to be bad.”

The exact words from the judgment are quoted below :

https://www.livelaw.in/top-stories/governors-must-not-create-roadblocks-for-elected-governments-must-respect-peoples-will-supreme-court-288762

Petition In Supreme Court Challenging Waqf Amendment Act-

Following several petitions challenging the Waqf (Amendment) Act, 2025, now the NGO Association for the Protection of Civil Rights (APCR) has filed a writ petition before the Supreme Court challenging the law as violating Articles 14, 25, 26 and 300A of the Indian Constitution.

The petition terms the new Act as an "alarming interference" into the religious affairs of the Muslim community, thereby diluting the fundamental propose of waqf which is deeply rooted practice in Quranic references and the Hadith since the time of Prophet Mohammad.

The petition, filed before the Presidential assent was granted on April 5, states that the provisions pose a grave danger to the autonomy and effectiveness of the waqf Board, particularly through the insertion of Section 40, which severely undermines the principles of natural justice enshrined in the Waqf Act, 1995.

Grounds for challenge

1. Substituting of the title to Unified Waqf Management, Empowerment, Efficiency, and Development is misleading and contrary to the fundamental purpose of the Act. It is stated in the petition that the substitution of the term waqf is not a neutral change, it is a deliberate attempt to rewrite history and dismantle the cultural legacy of colonised communities.

The term Waqf has deep-rooted religious, historical, and cultural significance, and its erasure reflects a colonial mindset aimed at diluting indigenous legal traditions under the guise of modernization...The Global South is actively engaged in decolonizing its legal and intellectual traditions, yet this legislative change reflects a redundant and regressive colonial sentiments to erase historical legacies and religious symbols under the garb of 'modernization.
While the legislature advocates for restoring 'indigenous institutions' in other spheres, this amendment reinforces colonial language and frameworks. The original title of the principle Act does not create any burden on beneficiaries or the legal community. There is no compelling legal, administrative, or social necessity to replace the term Waqf, a universally recognized concept in both Islamic law and Indian jurisprudence.

2. The amendment arbitrarily interference with the religious affairs of the Muslim community, which similar restrictions do not apply to non-Muslim religious institution, thereby failing the test of fairness, reasonableness and non-discrimination.

The inclusion of Non-Muslims in the religious affairs of the Muslim minority is not a step toward 'inclusivity' rather, it dilutes the autonomy of an already underrepresented community in India's institutional framework. The Sachar Committee Report (2006), presents compelling evidence of the abysmal socio-economic status and severe underrepresentation of Muslims in public institutions. In contrast, non-Muslim charitable institutions actively prohibit Muslim participation in their religious affairs, highlighting the discriminatory impact of this amendment.

It is stated that in States like Uttar Pradesh, Kerala, Karnataka and Tamil Nadu, only Hindus are permitted to be members of the Hindu endowment institutions. However, waqf institutions are being targeted which violations principles of neutrality and secular governance.

Furthermore, any forced interference in religious administration risks igniting communal and social unrest, thereby threatening the secular fabric of the Constitution. It is neither justified nor necessary to impose such provisions when no similar demands are being placed on non-Muslim religious institutions. This selective encroachment on minority rights must therefore be struck down in the interest of justice, fairness, and constitutional integrity.

3. The petition has also challenges omission of Section 3(r), which had a provision on waqf by user doctrine. It is stated that this constitutes a deliberate weakening of the legal recognition granting to waqf properties. Further, the petition states that the omission would result in jeopardising the vast tracts of waqf property that have historically served religious and charitable purposes for the Muslim community and other-non Muslim communities as well.

This Hon'ble Court has previously acknowledged and validated this doctrine in M. Siddiq v. Mahant Suresh Das(The Ayodhya Verdict). The removal of this provision, therefore, represents an attempt to erode the foundational principles protecting Waqf properties and disrupts the delicate balance between religious autonomy and state oversight.
The omission of Section 3(r) from the principal Act is not only contrary to established judicial precedents but also sets a dangerous precedent for the arbitrary exclusion of long-recognized religious rights. Moreover, the Joint Parliamentary Committee (JPC) has acknowledged that the effect of the deleted provision will apply prospectively, except in cases where disputes already exist. However, this additional proviso opens the floodgates to frivolous litigation, placing an unjust burden on individuals seeking to protect their legitimate rights over Waqf properties. Such an unnecessary amendment encroaches upon rights guaranteed under Article 300A of the Constitution, which ensures the protection of property rights.

4. The exclusion of disputed properties from recognition as waqf will escalate frivolous litigation by individuals or entities seeking to challenge existing waqf claims.

Disputes over waqf properties will arise drastically, leading to prolonged legal battles and uncertainty over religious properties. By excluding government properties, the amendment allows the state to take over lands previously recognized as waqf by user. This could affect mosques, dargahs, graveyards, and religious institutions built on lands now considered “government property.” There is also a risk of arbitrary classification of waqf lands as government property to facilitate acquisition.

It is further stated the amendment undermines the long-standing doctrine by placing additional conditions on recognition.

Historically, waqf properties were determined by continuous religious use, not by formal deeds or ownership records. This sudden shift in legal interpretation will weaken the waqf system in a nutshell. The Sachar Committee Report (2006) already highlighted the socio-economic disadvantages faced by Muslims. If waqf properties are excluded based on government claims or disputes, it will lead to a systematic decrease in religious and community assets available for the Muslim community.

The petition adds that the waqf board will face operational difficulties in protecting or managing waqf properties that were once waqf by user. Overall, the petition claims that the amendment violates Articles 25 and 26 as it constitutes an unconstitutional encroachment upon the religious autonomy of the Muslim community.

The petition has been drawn and filed by Adv. Adeel Ahmad (AOR), Adv. Atul Yadav, Adv. M Huzaifa, Adv. Mohammad Mobashshir Aneeq, and Adv. Taqdees Fatima.

https://www.livelaw.in/top-stories/ngo-acpcr-files-petition-in-supreme-court-challenging-waqf-amendment-act-288714

Dravida Munnetra Kazhagam (DMK), the political party in power in the State of Tamil Nadu, has filed a writ petition in the Supreme Court challenging the Waqf (Amendment) Act 2025.

The petition has been filed through the DMK's Deputy General Secretary A. Raja, Lok Sabha MP, who was also a Member of the Joint Parliamentary Committee on the Waqf Bill. The writ petition was settled by Senior Advocate P Wilson, who is also a Rajya Sabha MP belonging to the DMK.

The petitioner contended that the Amendment Act violates the fundamental rights of about 50 lakh Muslims in Tamil Nadu & 20 crore Muslims in other parts of the country. On March 27, the Tamil Nadu Legislative Assembly had passed a resolution urging the Union Government to withdraw the Waqf Amendment Bill.

The party contended that the Act was passed without considering the serious objections raised by its members both in the JPC as well as during the discussion in the Parliament.

Already, several petitions have been filed in the Supreme Court challenging the Act, which received the Presidential assent on Saturday (April 5). Today, the petitions were mentioned before the Chief Justice of India for urgent listing. CJI Sanjiv Khanna said that he would consider the request.

https://www.livelaw.in/top-stories/dmk-moves-supreme-court-challenging-waqf-amendment-act-2025-says-it-affects-rights-of-about-20-crore-muslims-288674

Joining the list of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025, the Indian Union Muslim League, a political party, has filed an Article 32 writ petition challenging the Act on grounds of violating Article 14, 15, 25 and 26 of the Constitution.

The Act is challenged as an "unconstitutional assault on the religious autonomy and personal rights of the Muslim community in India."

It is contended that the Act imposes arbitrary restrictions and enhances state control on Islamic religious endowments, deviating from the religious essence of waqf.

The 2025 Act's immediate enforcement, post-assent, risks immense and irreparable loss of Waqf properties throughout the length and breadth of the country, erosion of religious rights and severe legal uncertainty. The Petitioner seeks for the Striking down the challenged provisions of the Amendment Act as unconstitutional and the complete Restoration of the 1995 Act's corresponding safeguards and Interim stay of the Amendment Act to prevent implementation pending adjudication.

The provisions are challenged on the following grounds:

1. Section 2: Replaces “Waqf” with “Unified Waqf Management, Empowerment, Efficiency and Development,” diluting its religious identity.

2. Section 2A: Introduces a new proviso exempting trusts established by Muslims for purposes similar to Waqf, whether statutorily regulated or not, from the Act's purview, notwithstanding any court judgment, decree, or order, a provision absent in the Waqf Act, 1995.

3. Section 3 (ix) (a): Substitutes Section 3 (r) of the 1995 Act by adding arbitrary restrictions to the right of persons creating a Waqf to only Muslims who shall be "showing or demonstrating that he is practicing Islam for at least five years” and also excluding new converts and non-Muslims from creating Wakf in complete contravention of Islamic Law and practice.

This amendment further adds another arbitrary condition that only those properties can be dedicated to Wakf where “there is no contrivance involved in the dedication of such property” as mandatory for creation of a Wakf.

4. Section 3(ix)(b): Omits the practice of “Waqf by User,” as provided under Section 3 (i) of the 1995 Act negating centuries-old undocumented Waqfs.

The Amendment Act restricts established religious practices (e.g., Oral Waqfs, Waqf by User) and imposes arbitrary and humiliating conditions (demonstrating five-year practice of Islam) not mandated by Shari'ah, violating freedom of religion. This Hon'ble Court in Church of God v. K.K.R. Majestic [(2000) 7 SCC 282], has clearly held that faith-based acts need no duration test.

5. Section 4: Adds Section 3C to the 1995 Act which declares government-claimed properties as non-Waqf property, empowering Collectors to decide the disputes in an arbitrary manner without providing any provision of appeal against the said decision.

Further, the section adds Section 3B to the Principal Act which is an unnecessary imposition and arbitrary condition of filing of Wakf details already registered as Wakf within an extremely short period of six months. The said condition has the potential to remove Wakfs already registered under the Act.

6. Sections 9 & 11: Mandates non-Muslim members in Waqf Council and Wakf Boards, infringing autonomy of Muslims to administer their religious affairs and properties. This is prima facie a grave violation of Articles 25 and 26 of the Constitution.

Arbitrary distinctions (e.g., inclusion of non-Muslims in the management of Wakf but not the same for any other faith regarding the management of their religious affairs) and impractical provisions (e.g., six-month digitization, Collector expertise) lack rational basis, rendering them discriminatory and are prima facie discriminatory against Muslims.

The Amendment Act further adds arbitrary, humiliating and derogatory conditions such as “showing or demonstrating” that they are a practicing Muslim on persons seeking to create Wakfs. These conditions are extremely dangerous as they shall pave the way for further discrimination and segregation against Muslims and prima facie violate Articles 14 and 15.

Further, Wakf being an Islamic concept and it being a property dedicated to Allah and for the purpose of charity or religious purposes is now going to be managed by non-Muslims as per the Amendment Act. This is a clear violation of rights to practice religion by Muslims and administer their affairs as guaranteed under Articles 25 and 26 of the Constitution.

7. Section 14: Omits Section 20A of the 1995 Act removing the provision which gives the right to move a no-confidence motion against the Chairperson.

8. Section 18(a): Mandates written deeds, abolishing oral Waqfs. This is against the Islamic Law and principles which give right to persons to create Oral Wakfs and further in violation of Articles 14, 15, 25 and 26 of the Constitution.

9. Section 18(d): Grants unfettered power to the Collector on whether a property can be registered as a Wakf without any mechanism or provision of appeal against such decision of the Collector. This is extremely bias and in clear violation of the basic principles of law including the principles of natural justice and the basic structure of the Constitution.

The Amendment Act arbitrarily enhances state control by granting powers regarding registration of Wakfs to officers above the rank of Collector i.e., Designated Officers, Collectors. It further calls for addition of non-Muslim members to Wakf Boards and Council. These amendments clearly usurp the Fundamental Rights of management of religious affairs away from the Muslim Community.

These amendments are in sharp contrast to autonomy enjoyed by every other community to manage their affairs as mandated under Article 26 of the Constitution e.g. Hindus (Guruvayoor Devaswom Act), Sikh (Shiromani Gurudwara Parbandhak Committee) endowments among others. These amendments also contradict the Sachar Committee Report's call for management to rest within the community.

10. Section 18(f): Imposes an embargo of 6 months on filing of suits, appeals or other legal proceedings for the enforcement of any right on behalf of any wakf which has not been registered as per the Amendment Act. This amendment is arbitrary and imposes unnecessary restrictions and an extremely short period of 6 months on the rights of persons to file legal proceedings before the competent courts.

11. Section 20: Omits Section 40 of the 1995 Act, stripping Boards of power to determine Waqf status. The same is arbitrary and discriminatory since other religious endowments enjoy finality of order which has been taken away in a discriminatory manner from Wakf Board.

12. Section 40A: Applies the Limitation Act to Section 107 of the 1995 Act, threatening the perpetual status of Wakf as mandated in Islamic Law and encouraging encroachers upon Wakf properties.

13. Section 41: Omits Sections 108 (good-faith protection) and 108A (overriding effect) from the 1995 Act.

https://www.livelaw.in/top-stories/unconstitutional-assault-on-religious-autonomy-iuml-moves-supreme-court-challenging-waqf-amendment-act-2025-288651

The petitions filed in the Supreme Court challenging the Waqf Amendment Act 2025 were mentioned before the Chief Justice of India today seeking urgent listing.

Senior Advocate Kapil Sibal mentioned the petition filed by Maulana Arshad Madani, the President of the Islamic cleric's body Jamiat Ulema-i-Hind.

CJI Sanjiv Khanna asked Sibal why the oral mentioning is being made when there is a system in place to seek urgent listing by sending of email. CJI asked Sibal to move a mentioning letter. When Sibal said that the same has already been done, CJI said that he would do the needful after examining it this afternoon.

"All the urgent matters, including (inaudible) will be placed before me in the afternoon....why are you mentioning when we have a system in place?" CJI said.

When Sibal informed that he had sent the letter for mentioning, CJI said that he would examine them in the afternoon and do the needful

"It will be placed before me in the afternoon, I will do the needful," CJI said.

Advocate Nizam Pasha mentioned the petition filed by Lok Sabha MP Asaduddin Owaisi.

Notably, the Impugned Act was given Presidential Assent on April 5 after the Parliament passed it on April 4 with hours of discussion. Kerala Sunni scholars' body Samastha Kerala Jamiatul Ulema on April 6 also filed a writ petition challenging the Act.

Apart from the present challenge to the Act, 3 other petitions had also been filed challenging the Waqf Bill before it got the Assent of the President. These petitions were filed by Amanatullah Khan, Member of the Delhi Legislative Assembly, ˘belonging to the Aam Aadmi Party, Congress MP Mohammad Jawed and the NGO Association for Protection of Civil Rights.

Grounds Of Challenge By Arshad Madani

The petition, filed by Advocate Fuzail Ahmad Ayyubi, challenges various provisions of the Waqf (Amendment) Act, 2025, terming them unconstitutional and destructive to the waqf administration and jurisprudence in India. It seeks an interim direction from the Court directing the Union of India to defer the issuance of notification under Section 1(2) of the Amendment Act, which would operationalise the legislation. It is contended that once notified, several waqf properties would be vulnerable due to the mandatory timelines for uploading details on the Portal and Database envisaged under the amendment, threatening the very existence of a large number of historical waqfs—particularly those created by oral dedication or without formal deeds.

The removal undermines the lived realities of Islamic charitable practices and disenfranchises long-standing community institutions such as mosques and graveyards, many of which lack formal documentation due to their historical origins. It also challenges Section 3D and 3E added by way of an amendment moved by Shri Kiren Rijiju during Lok Sabha debates on 02 April which stipulate that Waqf-declaration over ASI-protected monuments would be invalid and no waqf could be created for properties of Scheduled Scheduled Tribes.

Further, the petition challenges the recomposition of both the Central Waqf Council and the State Waqf Boards, where prior requirements mandating Muslim-majority membership have been diluted or entirely removed. This, the petition argues, is an unconstitutional interference in the religious community's right to manage its own affairs in matters of religion and property. It also challenges the removal of a similar requirement for the CEO of the Boards to be Muslims.

https://www.livelaw.in/top-stories/petitions-challenging-waqf-amendment-act-2025-mentioned-before-supreme-court-for-urgent-listing-288606.

A prominent organization of Kerala-based Sunni Islamic scholars and clerics, Samastha Kerala Jamiatul Ulema, has filed a writ petition in the Supreme Court challenging the constitutionality of the Waqf (Amendment) Act 2025, which received the Presidential assent yesterday.

The Act, which makes sweeping changes to the Waqf Act 1995 in relation to the nature and administration of Islamic charitable dedications, has been questioned as violating the fundamental rights to equality(Article, to practice religion (Article 25), the right of a religious denomination to manage its own affairs (Article 26) etc. It is also contended that the amendments are manifestly arbitrary and discriminatory.

The petitioner-organization voices an apprehension that the cumulative effect of the amendments will be to "deprive the Muslim community of large tract of waqf properties."

The petitioner contends that the amendments do not contribute to the better administration of Waqfs; rather, they take away from the very essence of the concept of Waqf.

The specific grounds of challenge and arguments raised by the petitioner are as follows :

Elimination of Waqf by User

The amendment Act omits the concept of 'Waqf by User' by amending Section (r). As per Islamic law, a specific deed is not necessary to create a Waqf. Large percentage of Waqfs in India do not have any deed as they were created centuries ago and have been in use since time immemorial. The concept of 'Waqf by user' has been judicially accepted through several case laws, including the Ayodhya-Babri Masjid case verdict.

As a result of deleting this 'Waqf by user' from statute now anybody can challenge the characteristics of these age-old Waqfs and claim these properties to be private property or government property.

Inclusion of non-Muslims in Central Waqf Council and State Waqf Boards

The amendments mandate the inclusion of two non-Muslim members, excluding the ex-officio members, in the Central Council and the State Boards. This is an unconstitutional interference in the religious community's right to manage its own affairs in matters of religion and property. The petition also challenges the removal of a similar requirement that the CEO of the Board must be a Muslim.

Government made a judge in its own cause

The exception is taken to Section 3C of the Act, as per which a Government property declared as Waqf will not be deemed as a Waqf. An officer notified by the Government has been authorised to adjudicate the dispute under Section 3C. Till the said officer decides the issue, the property cannot be used as a Waqf.

Thus, the Government can judge its own cause, which results in a biased and partial dispute resolution mechanism. Also, the proviso that till a final decision, such a property would not be a Waqf is also questioned.

"This provision is blatantly contrary to the settled legal principles regarding interim relief in civil law. The settled law is that interim arrangement during pendency of a dispute shall be either in favour of status quo or to be decided on the basis on balance of convenience in each case. It is also to be noted herein that there is no time frame prescribed in this provision for the designated officer to conclude the inquiry and submit his report. Thus the officer can keep the inquiry pending for any longer time and the concerned property will remain ceased to be a waqf property during that period. Such a statutory provision is against all settled legal principles and blatantly arbitrary," the petitioner says.

Unreasonable requirement of information from Waqfs

It is contended that Section 3B imposes an unreasonable burden on the Waqfs to file several details on the central portal, which include name and address of creator of the Waqf, mode and date of creation.

The petitioner contended that compliance with such a requirement is impossible for waqfs that are more than a century old. It is alleged that there is a mala fide intention to make the registration of the waqfs unfeasible and non-viable.

Restrictions on creation of Waqf

The condition that only a person practising Islamic faith for at least 5 years can create Waqfs has been called into question. It is stated that there is no straitjacket formula or basis on which the Government can determine as to whether a person is a practising Muslim or not.

The stipulation that waqf-alal-aulad should not deny inheritance rights is challenged as an unreasonable State interference in a person's right to manage one's own private property.

Waqfs can't be created over ASI-protected monuments

The petitioner challenges Section 3D arguing that declaring an existing waqf property as void because it is an ASI-protected monument is unsustainable.Also, Section 3E is challenged as a blatant attempt to deprive Muslim members of Scheduled Tribes under the Fifth or Sixth Schedule to the Constitution of India from exercising their rights Wakifs of various waqf properties.

AIMIM MP Asaduddin Owaisi, Congress MP Mohammed Jawed, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamit Ulema President Maulana Arshad Madani have filed petitions in the SC against the Act,

The petition has been filed by AoR Zulfikar Ali PS. .

https://www.livelaw.in/top-stories/muslim-community-will-be-deprived-of-properties-kerala-islamic-clerics-body-approaches-supreme-court-against-waqf-amendment-act-288578

The President of Islamic cleric's body Jamiat Ulema-i-Hind, Maulana Arshad Madani, has filed a petition in the Supreme Court challenging the constitutional validity of the Waqf Amendment Act 2025, which received the President's assent yesterday.

The petition takes strong exception to the removal of the concept of "waqf by user," which has long been a rule of evidence in Indian waqf jurisprudence and was specifically recognized by the Supreme Court in the Ramjanmabhumi-Babri Masjid Judgment. The removal undermines the lived realities of Islamic charitable practices and disenfranchises long-standing community institutions such as mosques and graveyards, many of which lack formal documentation due to their historical origins. It also challenges Section 3D and 3E added by way of an amendment moved by Shri Kiren Rijiju during Lok Sabha debates on 02 April which stipulate that Waqf-declaration over ASI-protected monuments would be invalid and no waqf could be created for properties of Scheduled Scheduled Tribes.

The dilution of powers of the Waqf Boards is also strongly assailed. It is contended that the amendments strip the Boards of their authority to determine whether a property is waqf, take away the power to remove Chairpersons through no-confidence motions, and disempower them from selecting their own Chief Executive Officers, whose appointment was previously consultative and restricted to Muslim officers.

The petition also raises concerns about the application of the Limitation Act, 1963, to waqf properties. It argues that this paves the way for encroachers to claim adverse possession, a right previously unavailable due to the sui generis character of waqf property as inalienable and perpetual.

Further, the removal of finality attached to Waqf Tribunal decisions, central rule-making powers, and overbroad procedural obligations such as public notices in local newspapers—without clarity on who is an affected person—are also flagged as violative of Articles 14 and 15 of the Constitution. These provisions not only subject waqf properties to procedural hurdles but also expose them to vested interests and legal uncertainty, the petitioner claims.,

According to the petitioner, the impugned amendments override the denominational and representative foundations of the Waqf Act, 1995, and replace them with an excessive regime of executive control, in violation of fundamental rights under Articles 14, 15, 16, 25, 26, and 300A of the Constitution.

https://www.livelaw.in/top-stories/jamiat-ulema-president-approaches-supreme-court-against-waqf-amendment-act-seeks-interim-direction-to-defer-laws-notification-288576 .

Asaduddin Owaisi, Member of Parliament representing the Hyderabad constituency in Lok Sabha, has filed a writ petition in the Supreme Court challenging the constitutionality of the Waqf (Amendment) Bill, 2025 on the grounds that the Amendment takes way the protection accorded to the waqf under Article 26 of the Constitution while retaining such protection for religious and charitable endowments of other religions.

It is, therefore, in violation of Articles 14, 15, 21, 25, 26, 29, 30, and 300A of the Constitution of India and is manifestly arbitrary, the petition notes.

"The Amendment Act, 2025 marks a departure from this consistent progression towards affording greater protections to the rights of the Muslim community under Articles 25 and 26 of the Constitution and charts a new course of diluting the protections to waqfs undermining the rights of the minority communities in its properties and expanding the interference of the State over waqf administration," the petition.

It is stated in the petition that the Amendment also takes away from waqfs various protections which were accorded to waqfs and Hindu, Jain, and Sikh religious and charitable endowments alike.

"This diminishing of the protection given to waqfs while retaining them for religious and charitable endowments of other religions constitutes hostile discrimination against Muslims and is violative of Articles 14 and 15 of the Constitution, which prohibit discrimination on the grounds of religion."

Owaisi has specifically challenged the constitutional validity of clauses 2A, 3(v), 3(vii), 3(ix), 4, 5(a), 5(b), 5(c), 5(d), 5(f), 6(a), 6(c), 6(d), 7(a)(ii), 7(a)(iii), 7(a)(iv), 7(b), 8(ii), 8(iii), 8(iv), 9, 11, 12(i), 14, 15, 16, 17(a), 17(b), 18, 19, 20, 21(b), 22, 23, 25, 26, 27, 28(a), 28(b), 29, 31, 32, 33, 34, 35, 38, 39(a), 40, 40A, 41, 42, 43(a), 43(b), and 44 of the 2025 Act.

Who can create waqf

Clauses 3(ix)(a) and 3(ix)(d) of the Bill on who can create waqf have been challenged as being manifestly arbitrary, vague, and unconstitutional restrictions. As per this clause, a person has to be a practising Muslim for at least 5 years to create a Waqf.

It is argued that the restriction on who can create a waqf is in direct conflict with Sections 3 and 4 of the Muslim Personal Law (Shariat) Application Act, 1937, which does not prescribe any other condition except that a person must be Muslim, competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872 and a resident of the territories to which he 1937 Act extends.

"Requiring the waqif to show or demonstrate that they have practised Islam for at least five years undermines constitutional protections under Articles 14, 15, and 300A of the Constitution, as it discriminates against recent converts by selectively preventing them from seeking religious merit immediately upon conversion by disposing of their property in a manner they deem fit.
Further, the impugned amendment imposes an additional requirement of the waqif 'demonstrating' that he has been practising Islam for at least five years, placing a third-party authority in a position to judge the practice and adherence of a citizen's faith, which makes a mockery of Article 25."

It has also been stated that Islamic law has historically permitted even non-Muslims to dedicate property as waqf. This provision was carried forward in the Waqf Act, 1995, as Section 104, and in 2013, an amendment was introduced in the 1995 Act by which the words “by a person professing Islam” were replaced with the words “by any person” in the definition of waqf, permitting non-Muslims to create valid waqfs, beyond what had already been allowed by virtue of Section 104.

"Therefore, Clauses 3(ix)(a) and 3(ix)(d) of the Amendment Act, especially when read in conjunction with Clause 40 of the said Act, by which Section 104 of the 1995 Act has been omitted, is not only unconstitutional but also effectively reverses years of progress and evolution of the waqf legislation."

The petition also challenges this amendment as it requires demonstrating that there is no 'contrivance' involved in the dedication of the property.

"This also gives another vague and entirely subjective ground for the authority to invalidate a dedication of property on a ground that does not exist in any other law relating to any other endowments of any other religion. This is again violative of Articles 14 and 15 of the Constitution."

Derocognition of waqf by user

The petition states that the principle of waqf by user is a well-established rule of evidence under Islamic jurisprudence, which has also been upheld by the Supreme Court. The judgment in M Siddiq v. Mahant Suresh Das (Ayodhya case verdict) has been referred to note that the Supreme Court affirmed that Muslim law recognises oral dedication and that the existence of a waqf can be legally recognised in situations where property has been the subject of public religious use since time immemorial, even in the absence of an express dedication.

"Therefore, the derecognition of this principle would not only jeopardise the status of numerous ancient waqf properties that rely on this principle to establish their existence but also run contrary to established legal precedent, including the judgment by a Constitution Bench of this Hon'ble Court. By exposing historic waqfs, including mosques and dargahs, to encroachment and legal challenges, Section 3(ix)(b) of the Amendment Act undermines the State's constitutional duty under Article 25 and the Places of Worship (Special Provisions) Act 1991 (“1991 Act”), which contains the legislative manifestation of the doctrine of non-retrogression that this Hon'ble Court in M Siddiq (supra) has recognised as being an essential facet of secularism, which forms a core element of the basic structure of the Constitution of India."

Inclusion of non-Muslim members in Waqf Board

Lastly, it has been submitted that the inclusion of non-Muslim members into the Central Waqf Council and State Waqf Boards, undermines the autonomy of the Muslim community in managing properties dedicated for their religious and charitable purposes, in blatant contravention of Articles 14, 15, 25 and 26 of the Constitution.

"[In] Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, this Hon'ble Court established a simple test: while the institutions and properties of a religious denomination may be subject to regulatory measures, the fundamental right to administer them cannot be legislatively abrogated. By allowing the government to nominate a majority of non-Muslim members, these amendments effectively strip the Muslim community of its right to manage its own religious institutions, in direct violation of the test laid down in Shirur Mutt (supra) and Article 26 of the Constitution"

Provision

Sections 3D and 3E of the Amendment Act have also been challenged.

Section 3D prohibits the creation of Waqf over a property declared as an ancient protected monument or an archaeological site

It is stated Section 3D is ex facie unconstitutional as it retrospectively renders void any declaration or notification previously issued under any extant law of waqfs if the property to which the notification relates is a 'protected monument' or a 'protected area' within the Ancient Monuments Preservation Act, 1904, and the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

"This places a question mark on hundreds of properties which are places of worship and have been continuously in use for Islamic worship for centuries. This has the potential to create conflict and vitiate the communal atmosphere in the country, particularly in relation to mosques, dargahs and other places of Islamic worship where mischievous claims have been made by divisive elements for political gain. As such, this is contrary to the principle of secularism which is recognised as a basic feature of the Constitution by this Hon'ble Court in SR Bommai & Ors v. UOI (1994).This also has the potential of reopening wounds of the past, and undermining the objectives of the 1991 Act, which has been elevated to the status of a constitutional principle by this Hon'ble Court in M Siddiq (supra)."

Section 3E is ex facie unconstitutional as it deprives members of Scheduled Tribes of the right to dedicate property by way of waqf.

"Unlike Scheduled Castes, members of Scheduled Tribes do not lose their status as such upon conversion to another religion. Therefore, members of Scheduled Tribes who convert to Islam retain their tribal status but at the same time, take on the identity of Muslims. The impugned amendment deprives such persons of their right to freely practise their religion under Article 25 and 26 of the Constitution by disallowing them from practising an essential element of their faith. It also unjustly interferes with their right to property rendering Article 300A nugatory. This amendment is also in violation of Articles 14 and 15 as it amounts to hostile discrimination between members of Scheduled Tribes on the grounds of religion and between Muslims on the grounds of their tribe. As such, this amendment is manifestly arbitrary and unconstitutional, and deserves to be struck down."

The Bill, which was passed by the Rajya Sabha today, is yet to receive the Presidential Assent. The petition was filed today 10.50 AM.

The petition has been filed by AOR Lzafeer Ahmad BF.

https://www.livelaw.in/top-stories/owaisi-challenges-waqf-amendment-bill-in-supreme-court-says-it-strips-muslims-of-right-to-manage-their-own-religious-affairs-288479

Within hours of Parliament passing the Waqf(Amendment) Bill 2025, a petition has been filed in the Supreme Court challenging the Bill, which makes several changes to the 1995 Act governing Waqfs.

The petition has been filed by Congress MP Mohammad Jawed, contending that the law violates Constitutional rights guaranteed under Articles 14 (right to equality), 25 (freedom to practice religion), 26 (freedom to manage religious affairs), 29 (minority rights) and 300A (right to property).

It is pertinent to note that the Bill is yet to come into force as an Act since the President's assent is awaited.

In the petition, filed through Advocate-on-Record Anas Tanwir, Jawed contends that the Act discriminates against the Muslim community by imposing restrictions that are not present in the governance of other religious endowments.

"For instance, while Hindu and Sikh religious trusts continue to enjoy a degree of self-regulation, the amendments to the Wakf Act, 1995 (“Wakf Act”), disproportionately increases state intervention in Waqf affairs. Such differential treatment amounts to a violation of Article 14 in addition to introduction of arbitrary classifications that lack a reasonable nexus to the objectives sought to be achieved, making it impermissible under the doctrine of manifest arbitrariness," the petitioner states.

The petitioner also questions the condition in the Bill that one should be a practitioner of Islam for at least 5 years to create a Waqf, saying that such a limitation is "unfounded in Islamic law, custom or precedent and infringes upon the fundamental right to profess and practice religion under Article 25."

Additionally, the restriction discriminates against individuals who have recently converted to Islam and wish to dedicate property for religious or charitable purposes, thereby violating Article 15.

The omission of the Waqf-by-User provision is also questioned, saying that it has been recognized by several long-standing judicial decisions, including the Ayodhya-Babri Masjid verdict. "By removing this provision, the Act disregards established legal principles and limits the ability of the Waqf Tribunal to recognize properties as Waqf based on historical usage, thereby violating Article 26, which guarantees religious denominations the right to manage their own affairs."

The petitioner next took objection to the provisions allowing the inclusion of non-Muslims in the Central Waqf Council and the State Waqf Board, terming it "an unwarranted interference in religious governance." The petitioner points out that Hindu religious endowments are exclusively managed by Hindus under various state enactments. "This selective intervention, without imposing similar conditions on other religious institutions, is an arbitrary classification and violates Articles 14 and 15."

The petitioner argues that the Amendment allows enhanced State interference in the administration of waqfs. It shifts key administrative functions, such as the power to determine the nature of Waqf properties, from the Waqf Board to the District Collector. This transfer of control from religious institutions to government officials dilutes the autonomy of Waqf management and contravenes Article 26(d) of the Constitution.

"These amendments undermine property rights protected under Article 300A. By expanding State control over Waqf assets, limiting the ability of individuals to dedicate property for religious purposes, and subjecting Waqf properties to heightened scrutiny, the Act goes against this Hon'ble Court's decision in Ratilal Panachand Gandhi v. The State of Bombay AIR 1954 SC 388 wherein it was held that transferring control of religious property to secular authorities is an infringement of religious and property rights," the petitioner contends.

The Bill was passed by the Rajya Sabha during the wee hours of today, at around 2.30 AM, after a marathon debate which lasted for over 14 hours. Yesterday, the Lok Sabha also witnessed a similar discussion, which went past midnight, before clearing the bill.

https://www.livelaw.in/top-stories/discriminates-against-muslim-community-congress-mp-approaches-supreme-court-challenging-waqf-amendment-bill-2025-288473

ഹോം > കോടതി അപ്‌ഡേറ്റുകൾ > സുപ്രീം കോടതി > ഒരു സംവിധാനമുണ്ട്...

വഖഫ് ഭേദഗതി നിയമത്തെ അടിയന്തരമായി പട്ടികപ്പെടുത്തുന്നതിനെ ചോദ്യം ചെയ്തുള്ള ഹർജികൾ പരാമർശിച്ചതിന് കപിൽ സിബലിനെ ചീഫ് ജസ്റ്റിസ് ശാസിച്ചു.

രചയിതാവ് - സുകൃതി മിശ്ര

അപ്ഡേറ്റ്: 2025-04-07 06:16 GMT

2025 ലെ വഖഫ് ഭേദഗതി നിയമത്തിന്റെ ഭരണഘടനാ സാധുതയെ ചോദ്യം ചെയ്യുന്ന ഒരു ഹർജിയിൽ പരാമർശിക്കാൻ ശ്രമിച്ച മുതിർന്ന അഭിഭാഷകരായ കപിൽ സിബലിനെയും അഭിഷേക് മനു സിംഗ്വിയെയും സ്ഥാപിത നടപടിക്രമങ്ങൾ പാലിക്കണമെന്ന് സുപ്രീം കോടതിയിൽ രാവിലെ നടന്ന പരാമർശത്തിനിടെ നടന്ന ഹ്രസ്വവും എന്നാൽ ശ്രദ്ധേയവുമായ ഒരു സംഭാഷണത്തിൽ, ചീഫ് ജസ്റ്റിസ് സഞ്ജീവ് ഖന്ന അവരെ ശക്തമായി ഓർമ്മിപ്പിച്ചു .

"വഖഫ് നിയമത്തെ ചോദ്യം ചെയ്ത് ഞങ്ങൾ ഒരു ഹർജി സമർപ്പിച്ചിട്ടുണ്ട്," എന്ന് മുതിർന്ന അഭിഭാഷകൻ കപിൽ സിബൽ വാദത്തിനിടെ ബെഞ്ചിനെ അറിയിക്കാൻ എഴുന്നേറ്റുനിന്നു. വിഷയത്തിൽ കോടതിയുടെ ശ്രദ്ധ അഭ്യർത്ഥിക്കുന്നതിൽ മുതിർന്ന അഭിഭാഷകൻ സിംഗ്വിയും അദ്ദേഹത്തോടൊപ്പം ഉണ്ടായിരുന്നു.

എന്നിരുന്നാലും, "ഒരു സംവിധാനമുള്ളപ്പോൾ നിങ്ങൾ എന്തിനാണ് അത് പരാമർശിക്കുന്നത്? ഒരു സംവിധാനമുണ്ട്.... ഉച്ചകഴിഞ്ഞ് എനിക്ക് കത്ത് ലഭിക്കും; ആവശ്യമായത് ഞാൻ ചെയ്യും" എന്ന് പറഞ്ഞുകൊണ്ട്, അനൗപചാരികമായി വിഷയം പരാമർശിക്കാനുള്ള നീക്കത്തെ ശാസിച്ചുകൊണ്ട് ചീഫ് ജസ്റ്റിസ് പെട്ടെന്ന് പ്രതികരിച്ചു.

ഹർജി ഉൾപ്പെടെയുള്ള എല്ലാ അടിയന്തര കാര്യങ്ങളും പിന്നീട് തന്റെ മുമ്പാകെ വയ്ക്കുമെന്നും അതനുസരിച്ച് ഉചിതമായ ലിസ്റ്റിംഗ് തീയതി നിശ്ചയിക്കുമെന്നും അദ്ദേഹം വ്യക്തമാക്കി.

അടിയന്തര ആശ്വാസം തേടാതെ വിഷയം "പരാമർശിക്കുക മാത്രമാണ്" ചെയ്തതെന്ന് മുതിർന്ന അഭിഭാഷകർ ചൂണ്ടിക്കാട്ടിയപ്പോൾ, ഹർജികൾ ലിസ്റ്റ് ചെയ്യുന്നതിനും അടിയന്തര വാദം കേൾക്കുന്നതിനും ഉചിതമായ നടപടിക്രമങ്ങൾ പാലിക്കണമെന്ന് ചീഫ് ജസ്റ്റിസ് വാദിച്ചു.

ലോക്‌സഭാ എംപി അസദുദ്ദീൻ ഒവൈസി നൽകിയ ഹർജിയും അഭിഭാഷകൻ നിസാം പാഷ പരാമർശിച്ചു.

2025 ലെ വഖഫ് ഭേദഗതി നിയമത്തെ ചോദ്യം ചെയ്ത് ഇതുവരെ ഹർജികൾ സമർപ്പിച്ചിരിക്കുന്നത്:

1. മുഹമ്മദ് ജാവേദ് (കോൺഗ്രസ്)

2. അസദുദ്ദീൻ ഒവൈസി (എ.ഐ.എം.ഐ.എം)

3. മമാനത്തുള്ള ഖാൻ (എഎപി)

4. അസോസിയേഷൻ ഫോർ പ്രൊട്ടക്ഷൻ ഓഫ് സിവിൽ റൈറ്റ്സ് (എൻ‌ജി‌ഒ)

5. മൗലാന അർഷാദ് മദനി (ജംഇയ്യത്ത് ഉലമ-ഇ-ഹിന്ദ് മേധാവി)

6. സമസ്ത കേരള ജംഇയ്യത്തുൽ ഉലമ (കേരളത്തിൽ നിന്നുള്ള മുസ്ലിം സംഘടന)

7. അഞ്ജും കദാരി

അസോസിയേഷൻ ഫോർ പ്രൊട്ടക്ഷൻ ഓഫ് സിവിൽ റൈറ്റ്സ് പെറ്റീഷൻ

യു.എം.ഇ.ഡി ബിൽ എന്നറിയപ്പെടുന്ന ഏകീകൃത വഖഫ് മാനേജ്‌മെന്റ് എംപവർമെന്റ്, എഫിഷ്യൻസി ആൻഡ് ഡെവലപ്‌മെന്റ് ബില്ല്, 2025 ന്റെ ഭരണഘടനാ സാധുതയെ ചോദ്യം ചെയ്തുകൊണ്ടാണ് എ.ഒ.ആർ. അദീൽ അഹമ്മദ് മുഖേന സമർപ്പിച്ച ഹർജി സമർപ്പിച്ചത് . ഭരണഘടനയുടെ ആർട്ടിക്കിൾ 32-നോടൊപ്പം ആർട്ടിക്കിൾ 142-ഉം ചേർത്ത് വായിക്കുന്ന ഹർജിക്കാരൻ, മതസ്വാതന്ത്ര്യം, ന്യൂനപക്ഷ അവകാശങ്ങൾ, സ്വത്ത് സംരക്ഷണം എന്നിവയ്‌ക്കെതിരായ ഗുരുതരമായ ആക്രമണമാണെന്ന് വിശേഷിപ്പിച്ച് നിയമനിർമ്മാണം റദ്ദാക്കാൻ സുപ്രീം കോടതിയുടെ അനുമതി തേടിയിട്ടുണ്ട്.

ഹരജി പ്രകാരം, UMEED ബിൽ ഭരണഘടനയുടെ ആമുഖത്തിൽ ഉൾപ്പെടുത്തിയിരിക്കുന്ന മതേതരവും ജനാധിപത്യപരവുമായ മൂല്യങ്ങളെ ദുർബലപ്പെടുത്തുന്നതിന് പുറമേ, ആർട്ടിക്കിൾ 14 (നിയമത്തിന് മുമ്പിലുള്ള സമത്വം), 25, 26 (മതസ്വാതന്ത്ര്യം), 300A (സ്വത്തവകാശം) എന്നിവ നേരിട്ട് ലംഘിക്കുന്നു. ബിൽ പാർലമെന്റിൽ പ്രോസസ്സ് ചെയ്ത് പാസാക്കിയ രീതിക്കെതിരെ ഹർജി ശക്തമായ എതിർപ്പുകൾ ഉയർത്തുന്നു. 2025 ഏപ്രിൽ 3 ന് ലോക്സഭ ഇത് അംഗീകരിച്ചു, അടുത്ത ദിവസം, 2025 ഏപ്രിൽ 4 ന് രാജ്യസഭയിൽ ഇത് പാസാക്കി. മതിയായ ചർച്ചയോ പങ്കാളികളുമായി കൂടിയാലോചനയോ ഇല്ലാതെ ബിൽ തിടുക്കത്തിൽ പാസാക്കിയെന്നും ഇപ്പോൾ രാഷ്ട്രപതിയുടെ അനുമതി ലഭിക്കാൻ പോകുകയാണെന്നും ഹർജിക്കാരൻ ആരോപിക്കുന്നു.

നിർദ്ദിഷ്ട പുനഃസ്ഥാപനത്തെ "മുസ്ലീം സമൂഹത്തിന്റെ മതപരമായ കാര്യങ്ങളിൽ ഭയാനകമായ ഇടപെടൽ" എന്ന് വിശേഷിപ്പിച്ച ഹർജിക്കാരൻ, സുപ്രീം കോടതിയുടെ മുൻ വിധികൾ സ്ഥിരീകരിച്ചതുപോലെ, നിലവിലുള്ള വഖഫ് നിയമം, 1995, വഖഫ് സ്വത്തുക്കൾ കൈകാര്യം ചെയ്യുന്നതിനും കൈകാര്യം ചെയ്യുന്നതിനുമുള്ള സമഗ്രമായ ഒരു നിയമഘടന നൽകുന്നുവെന്ന് വാദിക്കുന്നു.

വഖഫ് നിയമത്തിൽ ഉൾപ്പെടുത്തിയിരുന്ന സ്വാഭാവിക നീതിയുടെ തത്വങ്ങളെ ദുർബലപ്പെടുത്തുന്നുവെന്ന് അവകാശപ്പെടുന്ന UMEED ബില്ലിൽ സെക്ഷൻ 40 ഉൾപ്പെടുത്തുന്നതിനെ ഹർജിക്കാരൻ പ്രത്യേകിച്ച് ചൂണ്ടിക്കാണിക്കുന്നു. കൂടാതെ, ദീർഘകാലമായി നിലനിൽക്കുന്ന വഖഫിനെ ഉപയോക്തൃ സിദ്ധാന്തം വഴി ഉയർത്തിപ്പിടിച്ച സെക്ഷൻ 3(i)(r) നീക്കം ചെയ്തതിനെ വഖഫ് സ്വത്തുക്കൾക്ക് നൽകിയിട്ടുള്ള "നിയമ സംരക്ഷണം ദുർബലപ്പെടുത്താനുള്ള മനഃപൂർവമായ ശ്രമം" എന്ന് വിശേഷിപ്പിക്കുന്നു.

ശ്രദ്ധേയമായി, അയോധ്യ വിധിയിൽ (എം. സിദ്ദിഖ് v. മഹന്ത് സുരേഷ് ദാസ്) സുപ്രീം കോടതി തന്നെ ഉപയോക്തൃ സിദ്ധാന്തം അംഗീകരിച്ചതിനെ ഉദ്ധരിച്ച്, ഈ ഒഴിവാക്കൽ ഭരണഘടനാ സംരക്ഷണങ്ങളിൽ നിന്നും ജുഡീഷ്യൽ അംഗീകരിക്കപ്പെട്ട തത്വങ്ങളിൽ നിന്നുമുള്ള ഒരു പിന്മാറ്റത്തെ പ്രതിഫലിപ്പിക്കുന്നുവെന്ന് വാദിക്കാൻ ഹർജിയിൽ പരാമർശിക്കുന്നുണ്ട്.

"2025 ലെ UMEED ബിൽ ഭരണഘടനാ വിരുദ്ധവും അന്യായവുമായ നിയമനിർമ്മാണ അതിക്രമമാണെന്ന് ഹർജിക്കാരൻ വിനീതമായി സമർപ്പിക്കുന്നു, ഇന്ത്യൻ ഭരണഘടന ഉറപ്പുനൽകുന്ന മൗലികാവകാശങ്ങൾ, വ്യക്തിസ്വാതന്ത്ര്യം, മതപരമായ സ്വയംഭരണം എന്നിവ ഉയർത്തിപ്പിടിക്കുന്നതിനായി അത് റദ്ദാക്കണം," ഹർജിയിൽ പറയുന്നു.

അഞ്ജും കാദരിയുടെ ഹർജി

പാർലമെന്റിന്റെ ഇരുസഭകളും അടുത്തിടെ പാസാക്കിയ ഏകീകൃത വഖഫ് മാനേജ്‌മെന്റ് ശാക്തീകരണം, കാര്യക്ഷമത, വികസന ബില്ല്, 2025 ന്റെ ഭരണഘടനാ സാധുതയെ ചോദ്യം ചെയ്യുന്നതാണ് എഒആർ സഞ്ജീവ് മൽഹോത്ര മുഖേന സമർപ്പിച്ച ഹർജി . ഭരണഘടനയുടെ ആർട്ടിക്കിൾ 142 നോടൊപ്പം ചേർത്ത ആർട്ടിക്കിൾ 32 പ്രകാരം സമർപ്പിച്ച ഹർജിയിൽ, 2025 ലെ വഖഫ് ഭേദഗതി ബിൽ, പൗരന്മാർക്ക്, പ്രത്യേകിച്ച് മുസ്ലീം സമുദായത്തിൽപ്പെട്ടവർക്ക് ഉറപ്പുനൽകുന്ന മൗലികാവകാശങ്ങളെയും ഭരണഘടനാ സംരക്ഷണങ്ങളെയും ലംഘിക്കുന്നുവെന്ന് ആരോപിക്കുന്നു.

1995 ലെ വഖഫ് നിയമത്തിലെ ഭേദഗതികൾ ഭരണഘടനയുടെ ആർട്ടിക്കിൾ 14 (സമത്വത്തിനുള്ള അവകാശം), 15 (വിവേചന നിരോധനം), 19 (സംസാര സ്വാതന്ത്ര്യം, ആവിഷ്കാര സ്വാതന്ത്ര്യം), 21 (ജീവിക്കാനും വ്യക്തിസ്വാതന്ത്ര്യത്തിനുമുള്ള അവകാശം), 25, 26 (മതസ്വാതന്ത്ര്യം), 29, 30 (ന്യൂനപക്ഷങ്ങളുടെ സാംസ്കാരികവും വിദ്യാഭ്യാസപരവുമായ അവകാശങ്ങൾ), ആർട്ടിക്കിൾ 300-എ (സ്വത്തവകാശം) എന്നിവയുടെ ലംഘനമാണെന്ന് ഹർജിക്കാരൻ വാദിക്കുന്നു.

അല്ലാഹുവിന് കൈമാറ്റം ചെയ്യപ്പെടുന്ന സ്വത്ത് എന്ന് നിർവചിക്കപ്പെട്ടിരിക്കുന്ന വഖഫ്, 1913 ലെ മുസൽമാൻ വഖഫ് വാലിഡേറ്റിംഗ് ആക്ട്, 1954 ലെ വഖഫ് ആക്ട്, പിന്നീട് സംസ്ഥാന വഖഫ് ബോർഡുകൾ വഴി ശക്തമായ ഭരണ സംവിധാനങ്ങൾ അവതരിപ്പിച്ച 1995 ലെ വഖഫ് (ഭേദഗതി) ആക്ട് തുടങ്ങിയ നിയമ ചട്ടക്കൂടുകളിലൂടെ വളരെക്കാലമായി ഭരിക്കപ്പെട്ടിരുന്നുവെന്ന് ഹർജിയിൽ പറയുന്നു. സുതാര്യതയും നിർവ്വഹണവും മെച്ചപ്പെടുത്തുന്നതിനായി 2013 ൽ കൂടുതൽ ഭേദഗതികൾ കൊണ്ടുവന്നു.

എന്നിരുന്നാലും, 2024 ഓഗസ്റ്റിൽ അവതരിപ്പിച്ച നിലവിലെ ബിൽ വ്യാപകമായ വിമർശനത്തിന് ഇടയാക്കിയിട്ടുണ്ട്. ബിൽ അവലോകനം ചെയ്ത സംയുക്ത പാർലമെന്ററി കമ്മിറ്റി ന്യൂനപക്ഷ സംഘടനകൾ ഉൾപ്പെടെയുള്ള പ്രധാന പങ്കാളികളുടെ അഭിപ്രായങ്ങൾ അവഗണിച്ചുവെന്ന് ഹർജിക്കാരൻ ആരോപിക്കുന്നു. എതിർപ്പുകൾ ഉണ്ടായിരുന്നിട്ടും, കമ്മിറ്റിയുടെ റിപ്പോർട്ട് അന്തിമമാക്കി 2025 ഫെബ്രുവരിയിൽ ലോക്‌സഭയിൽ സമർപ്പിച്ചു, ബിൽ തിടുക്കത്തിൽ പാസാക്കി - ആദ്യം 2025 ഏപ്രിൽ 3 ന് ലോക്‌സഭയും പിന്നീട് അടുത്ത ദിവസം, 2025 ഏപ്രിൽ 4 ന് രാജ്യസഭയും.

ബിൽ പാസായതിനെത്തുടർന്ന്, ന്യൂനപക്ഷ അവകാശങ്ങൾ ഇല്ലാതാക്കുന്നതിനെക്കുറിച്ചും മതപരവും ജീവകാരുണ്യവുമായ സ്ഥാപനങ്ങളിൽ എക്സിക്യൂട്ടീവിന്റെ ഏകപക്ഷീയമായ ഇടപെടലിനെക്കുറിച്ചും ആശങ്കകൾ ഉന്നയിച്ച് 2025 ഏപ്രിൽ 5 ന് ആയിരക്കണക്കിന് പ്രതിഷേധക്കാർ തെരുവിലിറങ്ങി.

ഭേദഗതി ബിൽ ഇനിപ്പറയുന്നവയാണെന്ന് ഹർജി ആരോപിക്കുന്നു:-

- മുസ്ലീം സമൂഹത്തിന്റെ മതപരവും സാംസ്കാരികവുമായ അവകാശങ്ങൾ വെട്ടിക്കുറയ്ക്കുകയും അവയിൽ ഇടപെടുകയും ചെയ്യുന്നു.

- ന്യൂനപക്ഷങ്ങൾക്ക് അവരുടെ സ്വന്തം മതസ്ഥാപനങ്ങൾ കൈകാര്യം ചെയ്യാനുള്ള സ്വയംഭരണത്തെ ദുർബലപ്പെടുത്തുന്നു.

- വഖഫ് ബോർഡുകളുടെ സ്വാതന്ത്ര്യം ഇല്ലാതാക്കിക്കൊണ്ട് അമിതമായ എക്സിക്യൂട്ടീവ് നിയന്ത്രണം സാധ്യമാക്കുന്നു.

- അർത്ഥവത്തായ പാർലമെന്ററി ചർച്ചയും പൊതുജനാഭിപ്രായം തേടലും ഒഴിവാക്കി തിടുക്കത്തിൽ പാസാക്കി.

മതേതരവും ക്ഷേമപരവുമായ ഒരു രാഷ്ട്രമെന്ന നിലയിൽ ഇന്ത്യയ്ക്ക് വിവേചനപരമോ മതപരമായ ആചാരങ്ങളെ ലക്ഷ്യം വച്ചുള്ളതോ ആയ നയങ്ങൾ നടപ്പിലാക്കാൻ കഴിയില്ലെന്ന് ഹർജിക്കാരൻ ഊന്നിപ്പറഞ്ഞു. ഭരണഘടനയിൽ ഉൾപ്പെടുത്തിയിരിക്കുന്ന മതപരവും സാംസ്കാരികവുമായ സ്വാതന്ത്ര്യങ്ങളുടെ ഘടനയെ തന്നെ ബിൽ ഭീഷണിപ്പെടുത്തുന്നുവെന്ന് ഹർജിയിൽ പറയുന്നു.

കാരണത്തിന്റെ പേര്: അസോസിയേഷൻ ഫോർ പ്രൊട്ടക്ഷൻ ഓഫ് സിവിൽ റൈറ്റ്സ് v. യൂണിയൻ ഓഫ് ഇന്ത്യ, അഞ്ജും കദാരി v. യൂണിയൻ ഓഫ് ഇന്ത്യ & മറ്റുള്ളവർ.

There Is A System In Place: CJI Rebukes Kapil Sibal For Mentioning Pleas Challenging Waqf Amendment Act For Urgent Listing

By - Sukriti Mishra

Update: 2025-04-07 06:16 GMT

There Is A System In Place: CJI Rebukes Kapil Sibal For Mentioning Pleas Challenging Waqf Amendment Act For Urgent Listing

In a brief but notable exchange during the morning mentioning in the Supreme Court, Chief Justice of India Sanjiv Khanna firmly reminded Senior Advocates Kapil Sibal and Abhishek Manu Singhvi to adhere to established procedures after they sought to mention a petition challenging the constitutional validity of the Waqf Amendment Act, 2025.

“We have moved a petition to challenge the Waqf Act,” Senior Advocate Kapil Sibal submitted, rising to inform the Bench during the mentioning period. He was joined by Senior Advocate Singhvi in requesting the Court’s attention to the matter.

However, the CJI swiftly responded, reprimanding the move to mention the matter informally, saying, “Why are you mentioning it when there is a system? There is a system in place....I will get the letter in the afternoon; I will do the needful.”

He further clarified that all urgent matters, including the petition in question, would be placed before him later in the day, and the appropriate listing date would be assigned accordingly.

While the Senior Advocates noted that they were “just mentioning” the matter without pressing for any immediate relief, the CJI maintained that due process must be followed for listing and urgent hearing requests.

Advocate Nizam Pasha also mentioned the petition filed by Lok Sabha MP Asaduddin Owaisi.

So far, Petitions have been filed challenging the Waqf Amendment Act, 2025 by:

1. Mohd. Jawed (Congress)

2. Asaduddin Owaisi (AIMIM)

3. Mmanatullah Khan (AAP)

4. Association For Protection of Civil Rights (NGO)

5. Maulana Arshad Madani (Head of Jamiat Ulema-i-Hind)

6. Samastha Kerala Jamiathul Ulema (Muslim organisation from Kerala)

7. Anjum Kadari

Association For Protection of Civil Rights Petition

The petition filed through AoR Adeel Ahmed challenged the constitutional validity of the Unified Waqf Management Empowerment, Efficiency, and Development Bill, 2025, commonly referred to as the UMEED Bill. The petitioner, invoking Article 32 read with Article 142 of the Constitution, has sought the indulgence of the apex court to strike down the legislation, calling it a grave assault on religious freedom, minority rights, and property protections.

According to the petition, the UMEED Bill directly violates Articles 14 (equality before law), 25 and 26 (freedom of religion), and 300A (right to property), in addition to undermining the secular and democratic values enshrined in the Preamble of the Constitution. The petition raises strong objections to the manner in which the Bill was processed and passed in Parliament. It was cleared by the Lok Sabha on April 3, 2025, and passed in the Rajya Sabha the very next day, on April 4, 2025. The petitioner alleges that the Bill was rushed through without adequate debate or stakeholder consultation, and is now on the verge of receiving Presidential assent.

Calling the proposed overhaul "alarming interference into the religious affairs of the Muslim community", the petitioner contends that the existing Waqf Act, 1995, already provides a comprehensive legal structure for managing and administering Waqf properties, as affirmed by prior rulings of the Supreme Court.

The petitioner particularly flags the insertion of Section 40 in the UMEED Bill, which is claimed to undermine the principles of natural justice that were embedded in the original Waqf Act. Further, the removal of Section 3(i)(r), which upheld the long-standing Waqf by user doctrine—is termed as a "deliberate attempt to weaken legal protection" granted to Waqf properties.

Notably, the plea cites the Supreme Court's own recognition of the Waqf by user doctrine in the landmark Ayodhya verdict (M. Siddiq v. Mahant Suresh Das) to argue that the omission reflects a retreat from constitutional safeguards and judicially accepted principles.

"The petitioner humbly submits that the UMEED Bill, 2025, is an unconstitutional and unjustified legislative overreach that must be struck down in the interest of upholding the fundamental rights, Individual freedom and religious autonomy guaranteed under the Constitution of India," the petition reads.

Anjum Kadari's Petition

The petition filed through AoR Sanjeev Malhotra challenges the constitutionality of the Unified Waqf Management Empowerment, Efficiency, and Development Bill, 2025, recently passed by both Houses of Parliament. The petition, filed under Article 32 read with Article 142 of the Constitution, alleges that the Waqf Amendment Bill, 2025, infringes upon the fundamental rights and constitutional protections guaranteed to citizens, particularly those belonging to the Muslim community.

The petitioner contends that the amendments to the Waqf Act, 1995, violate Articles 14 (right to equality), 15 (prohibition of discrimination), 19 (freedom of speech and expression), 21 (right to life and personal liberty), 25 and 26 (freedom of religion), 29 and 30 (cultural and educational rights of minorities), and Article 300-A (right to property) of the Constitution.

According to the petition, Waqf, defined as a property transferred to Allah, has long been governed through legal frameworks such as the Mussalman Waqf Validating Act, 1913, the Waqf Act of 1954, and later, the Waqf (Amendment) Act, 1995, which introduced stronger administrative mechanisms via State Waqf Boards. In 2013, further amendments were introduced to improve transparency and enforcement.

However, the present Bill, introduced in August 2024, has drawn widespread criticism. The petitioner alleges that the Joint Parliamentary Committee, which reviewed the Bill ignored the opinions of key stakeholders, including minority organizations. Despite objections, the Committee's report was finalized and tabled in the Lok Sabha in February 2025, and the Bill was passed in a hurried manner—first by the Lok Sabha on April 3, 2025, and then by the Rajya Sabha the very next day, April 4, 2025.

Following the passage of the Bill, thousands of protestors took to the streets on April 5, 2025, raising concerns over the erosion of minority rights and alleged arbitrary executive interference in religious and charitable institutions.

The petition alleges that the Amendment Bill:-

- Curtails and interferes with the religious and cultural rights of the Muslim community.

- Undermines the autonomy of minorities to manage their own religious institutions.

- Enables excessive executive control, stripping the Waqf Boards of their independence.

- Was passed in haste, bypassing meaningful parliamentary debate and public consultation.

The petitioner has emphasized that India, as a secular and welfare state, cannot enforce policies that are seen as discriminatory or targeting religious practices. The Bill, according to the plea, threatens the very fabric of religious and cultural freedoms enshrined in the Constitution.

Cause Title: Association For Protection of Civil Rights v. Union of India, and Anjum Kadari v. Union of India & Ors.

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Petition In Supreme Court Challenging Waqf Amendment Act-

അസോസിയേഷൻ ഫോർ പ്രൊട്ടക്ഷൻ ഓഫ് സിവിൽ റൈറ്റ്സ് പെറ്റീഷൻ

അഞ്ജും കാദരിയുടെ ഹർജി

There Is A System In Place: CJI Rebukes Kapil Sibal For Mentioning Pleas Challenging Waqf Amendment Act For Urgent Listing

Association For Protection of Civil Rights Petition

Anjum Kadari's Petition

എന്നെക്കുറിച്ച്