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Opinion Waqf SC hearing: Like in sedition, Article 370, how Centre pre-empted an adverse court order

This pre-empting a judicial setback was seen on May 11, 2022, a day after the SC observed that “prima facie” the law on sedition seemed unconstitutional and could be struck down.

Like in sedition, Art 370, how Centre pre-empted an adverse court order

On April 16, the three-judge bench headed by the Chief Justice of India had, in oral observations, indicated that it was considering staying at least three key provisions.

Apurva Vishwanath

New DelhiApril 18, 2025 02:02 PM IST First published on: Apr 18, 2025 at 04:45 AM IST

The government’s assurance to the Supreme Court Thursday that it would pause the two contentious provisions in the Waqf Act, 2025 — the concept of ‘waqf by use’ and inclusion of non-Muslims on waqf boards — is the latest in a series where the Centre has forestalled an adverse judicial order.

On April 16, the three-judge bench headed by the Chief Justice of India had, in oral observations, indicated that it was considering staying at least three key provisions. However, Solicitor General Tushar Mehta sought to buy time, requesting the Court to hear at least two more lawyers on behalf of the Centre. The bench agreed, adding that it would pass orders after hearing them.

On Thursday, Mehta instead began with a request to defer the hearing for the Centre to file written submissions. Eventually, when the SC bench stood firm that altering the status of “waqf by use” lands could be consequential, Mehta assured the Court that the Centre would pause its operation and also not allow states to make any non-Muslim appointments to waqf boards.

This pre-empting a judicial setback was seen on May 11, 2022, a day after the SC observed that “prima facie” the law on sedition seemed unconstitutional and could be struck down. The Centre reversed its stand in Court and said that it has decided to “re-examine and reconsider” the law. Ironically, Mehta had, in earlier hearings, defended the law.

In September 2023, one of the key issues before the SC while deciding the case on abrogation of Article 370 of the Constitution was whether Parliament has the power to downgrade a state to a union territory. Pre-empting a judicial decision on this issue by a Constitution bench which would bind the Parliament in future, the Centre told the Court that this issue need not be adjudicated since it would restore statehood for Jammu and Kashmir.

“The Solicitor General stated that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh). In view of the statement we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3,” the SC ruling notes.

On June 23, 2020, Delhi riots accused Safoora Zargar was granted bail by the Delhi HC after Mehta made a statement that he has no objection to her release on purely “humanitarian grounds”.

The concession from the state had come after it had opposed her bail plea, stating “there is no exception carved out for pregnant inmate who is accused of such heinous crime to be released on bail merely because of their pregnancy.” However the Court in its observations was inclined to grant bail.

The police had also submitted that “the very fact of rearing of life ought to have been a check on activities which had a potential to cause, and which did in fact cause, large-scale destruction of life and property.”