Article 26 Takes Centre Stage on Day 1 of SC’s Waqf Act Hearing — Here’s Why

Article 26 of the Indian Constitution took center stage on Wednesday’s Supreme Court hearing as the bench heard several petitions questioning the constitutional legitimacy of the Waqf Amendment Act. Senior counsel and Congress leader Kapil Sibal, representing Jamiat Ulema-E-Hind, referred to Article 26 in support of his argument that the Act interferes with the inherent religious practices of Muslims.

“Let me broadly address what the challenge is about. Through a parliamentary legislation, what is sought to be done is to intervene in an essential and integral part of a faith. I refer to article 26 and many provisions of the act violate article 26,” Sibal informed the bench.

‘Who Is the State to Decide?’Sibal Questions Provisions

Sibal recited particular sections of the Act that he alleged violate religious autonomy, especially about inheritance and the composition of boards.

“Who is the state to tell us how inheritance will be in my religion?” he questioned, disputing the state’s intervention in the regulation of religious inheritance through the Waqf Act.

He also expressed concerns regarding the modified law permitting non-Muslims to be included in Waqf Boards, terming it a basic violation.

“Now, the Waqf council and boards. Only muslims had been part of such boards. Now, even Hindus can be a part. This is a direct usurpation of fundamental rights by parliamentary enactment,” he claimed.

CJI Counters with Secular Interpretation

Chief Justice of India Sanjiv Khanna replied by pointing out that there are similar legislative schemes for Hindus and stated that Article 26 does not preclude Parliament from enacting laws based on their secular ideologies that affect religious communities.

“But in Hindus it does happen. So, Parliament has enacted a law for Muslims. Maybe, not like of the Hindus. Article 26 will not bar the enactment of law in this case. Article 26 is universal and it is secular in the fashion that it applies to all,” the CJI said.

However, Sibal countered by arguing that in Islam, inheritance laws become effective only after the death of the person and, therefore, should be left undisturbed by state interference.

Bench Clarifies Article 26’s Scope

Moreover, Justice KV Viswanathan, who was among the three-member bench, elaborated that Article 26, therefore, needed to be cautiously interpreted.

“Wordings of Article 26 regarding administering etc cannot be confused with essential religious practices,” he added.

Article 26 of the Constitution, therefore, guarantees that any religious denomination shall have the right to carry on its religious affairs, establish institutions, and administer property — all subject, however, to considerations of public order, morality, and health.

As the legal battle unfolds, the court will be required to establish whether the amended Waqf Act oversteps the constitutional threshold set by Article 26 or only regulates it in a secular framework.