The CJI clarified to Mehta that the court has already said there were some positive things in the law but it also doesn’t want the situation to change which is prevailing now, hence, a stay on certain provisions would be warranted.“We said there are some positive things. But we don’t want the situation prevailing today to change so drastically that it affects the rights of the parties. But there is another thumb rule, when the petition is pending before the court, the situation which is prevailing should not change so that the rights of persons are not affected,” the court said.The court opined that only five writ petitions would be considered and the remaining would be treated as disposed of, as it is impossible to deal with 100 or 120 petitions. It appointed lawyer Kanu Agarwal as nodal counsel for the Centre.The Supreme Court on Wednesday came down heavily on the Centre and hinted to pass some interim orders restricting several key provisions of the Act from coming into play, giving the government a day more to present its case in detail.”Ordinarily, courts do not interfere at the admission stage when a law is passed. But this case may warrant an exception. If a property declared as waqf by user is denotified, it can have grave ramifications,” the CJI said.Questioning the logic behind permitting non-Muslims in waqf governance, the court remarked, “Are you suggesting that Muslims could now be part of Hindu endowment boards as well? Please state it openly.”The apex court questioned how “waqf by user” could be disallowed as many would not have requisite documents to get such waqfs registered.”How will you register such waqfs by user? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have gone through privy council judgments also. Waqf by user is recognised. If you undo it then it will be a problem. Legislature cannot declare a judgment, order or decree as void. You can only take the basis,” the court asked. The court adjourned the case for Thursday, after Mehta and senior lawyer Rakesh Dwivedi, appearing for one of the states supporting the Waqf Act, objected to passing of orders, and requested for more time to argue in the case in a detailed manner.Appearing for the petitioners, senior advocate Kapil Sibal argued on Wednesday that the new law infringed upon the religious freedom of Muslims in managing their religious and charitable institutions.Pointing out the provision of the amended Waqf Act that mandates a person to be a practising Muslim for five years before making a waqf, Sibal asked, “How can the state decide whether and how, I am a Muslim or not, and hence, eligible to create a waqf?”He referred to Article 26 of the Constitution, saying, subject to public order, morality, and health, every religious denomination has the right to establish and maintain institutions for religious and charitable purposes and manage its own affairs in matters of religion.”Subject to public order, morality and health, every religious denomination or section thereof shall have the right to establish and maintain institutions for religious and charitable purposes. That’s my constitutional right, subject to these three limitations, to manage its own affairs in matters of religion that is an essential, integral part of a religious practice,” he said.
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