On Thursday, February 2, the Supreme Court slammed the Kerala State Waqf Board for engaging in ‘arm-twisting’ while hearing a case on the retrospective operability of section 52A of the Waqf Act, 1995, which carries penal consequences on anyone ‘encroaching’ on Waqf land.
As per a report by LawBeat, the case was being heard by a bench of Justices S. Ravindra Bhat and Dipankar Datta. In the case, Kerala High Court had earlier refused to terminate criminal proceedings against the petitioner firm even though the tenancy on the waqf land had expired in 2005 and the eviction order had been suspended. Even though the amendment making ‘encroachers’ criminals had come into effect only in 2013, the Kerala High Court had refused to dismiss the criminal proceedings against the petitioner.
Senior Advocate Besant R, appearing for the petitioner(s) explained that the Waqf board’s conduct was convoluted and retrospective in nature.
The State Waqf Board was strongly criticized by the bench at today’s hearing for using coercion and using the ‘draconian’ law against the petitioner(s) in question.
“This is draconian! I am aghast! Absolutely aghast! If the Constitution of India were written today, Article 21 (right to life) would not find itself in it,” Justice S. Ravindra Bhat said while pointing out that people who have not even committed a crime cannot be subjected to legal action. The tenancy had been declared unlawful in 2005, he noted, but the matter was left open until the amendment mandating criminal prosecution took effect, at which point the Kerala State Waqf Board used the ‘draconian’ act against the petitioner(s).
During the hearing, the state Waqf board insisted that they are not a private group and derive their power from legislation. They also said that they are only performing ‘public service.’
At this point, the bench said, “I understand you have lacs and lacs of acres of land but you cannot prosecute persons like this. There are civil remedies and this is nothing but arm-twisting.”
At the conclusion of the hearing, the Waqf Board’s attorney notified the court that a 2013 provision mandating criminal prosecution had now been repealed by a 2015 amendment. Taking notice of this, Justice S. Ravindra Bhat said, “So for those two years, they were offenders!”
The petition, submitted through their attorney Senthin Jagadeesan, argues that the Kerala High Court should have used its inherent authority to prevent abuse of the legal system and halted the proceedings under section 52A of the Waqf act, given that the state board’s eviction decision had already been stayed by the court and that the issue of whether the petitioner is an ‘encroacher’ is still under appeal. The Court has reserved its judgment in the case.
