Trinamool Congress MP Derek O’Brien has slammed the federal government after the Supreme Court docket placed on maintain some key provisions of the Waqf Modification Act, saying it was greater than only a rap on the knuckles of these indulging in “subterfuge” laws.
Nonetheless, he mentioned the Supreme Court docket must deal with probing questions like whether or not the Waqf Act flouts rights resembling equality, and freedom of faith.
In a weblog publish, O’Brien mentioned the week started for the Centre with one other “black Monday”.
O’Brien pointed that the Supreme Court docket stayed two of probably the most contentious provisions of the Waqf Act, 2025- One, an individual must be a practising Muslim for 5 years earlier than he can dedicate a property as Waqf, and the availability {that a} designated officer can adjudicate the rights of non-public residents.
The TMC chief mentioned the passing of the Waqf (Modification) Invoice, 2025 in Parliament was marked by “chicanery and evasive techniques”.
“Even an informal observer of Parliament can define how the BJP-led coalition is making a mockery of parliamentary process,” the Rajya Sabha MP mentioned.
He mentioned the movement to refer the invoice to a Joint Committee of each Homes of Parliament was, once more, moved on the final day of the session, and when the report of the Joint Parliamentary Committee (JPC) was introduced in Parliament, dissent notes by members of the Opposition had been “blotted out through the use of a whitener”.
He mentioned the Waqf (Modification) Invoice was handed in Parliament at the hours of darkness, round midnight in Rajya Sabha, and earlier than one within the morning in Lok Sabha, and added that Manipur was mentioned at 3 am.
O’Brien mentioned a significant argument made on this case was of the precept of presumption in favour of constitutionality, which signifies that when a legislation’s constitutionality is challenged, courts ought to typically presume the legislation to be legitimate and uphold it except it’s clearly confirmed in any other case.
“It assumes that legislatures act in good religion and inside their authority, and that invalidating legal guidelines ought to be an exception, not the default,” he mentioned within the weblog publish on Monday.
The TMC chief mentioned the Supreme Court docket like many constitutional courts worldwide, has repeatedly affirmed this presumption, stating that courts ought to solely strike down laws whether it is “manifestly unconstitutional” or violates basic rights past cheap doubt.
“Nonetheless, given latest developments the place legal guidelines have been used selectively to impose disproportionate burdens, regulate minority rights restrictively, or allow the state to overreach in areas constitutionally protected (like non secular freedom and equality), the presumption in favour of constitutionality deserves re-evaluation,” he mentioned.
He mentioned governance below the BJP has revealed a placing sample.
“The rise of customised, focused legal guidelines designed to have an effect on particular communities whereas leaving others untouched. The authorized pluralism in varied religions governing themselves, was a system adopted by the nation with the intention to respect numerous customs. However that is more and more being made a supply of authorized exceptionalism, the place teams are handled not as residents below a single rule of legislation however as topics of particular, extra restrictive, authorized regimes,” he mentioned.
“The impact is extremely symbolic, the legislation itself turns into a political message, not merely a regulatory software. Residents are left with a way that legal guidelines are designed ‘for them’ to not defend or administer society, however for surveillance, constraint, and to sign hierarchy,” he mentioned.
He mentioned some examples of those legal guidelines are the religion-specific Citizenship Regulation creating exclusions based mostly on religion, and Anti-Conversion Legal guidelines in states concentrating on interfaith marriage and spiritual conversion.
“Together with concentrating on, what these legal guidelines additionally do is that they place the state right into a place of the choose of id. Together with the 5 12 months requirement within the Waqf Act, these legal guidelines depend on the State to determine who qualifies as a minority and who doesn’t,” he mentioned.
“As soon as the State assumes the precise to determine who qualifies as a professional member of a neighborhood, it establishes a precedent that id is conditional, citizenship, religion, and rights can all be diminished to state-certified classes. When the State will get to determine who counts, democracy itself is in danger,” he mentioned.
O’Brien added that the Supreme Court docket must reply “probing questions”.
“Does the Waqf Act flout rights resembling equality earlier than the legislation (Article 14)? Does it flout freedom of faith (Articles 25 and 26)? Does it flout the prohibition of discrimination on grounds of faith (Article 15)? These are the probing questions which India hopes can be addressed by the Supreme Court docket,” he added.
The Supreme Court docket on Monday placed on maintain a number of key provisions of the Waqf legislation, together with the clause that solely these practising Islam for the final 5 years can dedicate a property as Waqf, however refused to remain all the legislation.
