The Supreme Court will not even touch the Wakf Amendment Bill… Congress will lose in the court after the Parliament, what do the rules say?
The Waqf Amendment Bill has finally been passed with majority in both the houses of Parliament i.e. Lok Sabha and Rajya Sabha after a lot of uproar. Now it will become a law after the President’s approval. Many parties including Congress had protested against it, but the government got it voted on after discussing it in the houses, in which this law was passed. Now senior Congress leader Jairam Ramesh has announced that his party will go to the Supreme Court on this issue and will challenge the validity of this bill. Some Muslim organizations have also talked about challenging this bill in the Supreme Court. Let us understand from legal experts whether the Supreme Court has the right to review the laws made by the Parliament. Can the judiciary cancel the law made by the Parliament?
Can the Supreme Court cancel the law passed by the Parliament?
Yes. Supreme Court advocate Anil Kumar Singh Srinet says that the Supreme Court is considered the guardian of the Constitution. In such a situation, it reviews the laws made by the Parliament to ensure that they are in accordance with the Constitution. If the Supreme Court feels that a law is against the Constitution, it can repeal it. Although the Parliament has the power to amend the Constitution, it cannot change the basic structure of the Constitution. Generally, the Supreme Court cannot repeal any law passed by the Parliament.
Does Article 13 of the Constitution give power to the Supreme Court?
According to legal expert Anil Singh, according to the Constitution, the Parliament is only responsible for changing the Constitution or amending the Constitution. The Parliament only has the right to pass new laws. According to Article 13 of the Constitution, if a law is against the Constitution, then the Supreme Court can repeal it. In such a situation, no institution or person other than the Parliament has the right to repeal any passed law. Institutions established through the Constitution such as the Supreme Court and the High Courts have only special law and justice powers that give them the right to repeal a law.
Does the Parliament have unlimited power?
No. The Parliament can make laws on all subjects, but it cannot change the basic structure of the Constitution. Article 368 (1) of the Indian Constitution empowers Parliament to amend the Constitution by adding, altering or deleting any provision in accordance with the procedure prescribed in the Constitution. The doctrine of the basic structure of the Constitution was widely discussed in the landmark Kesavananda Bharati case of 1973. It concluded that even a constitutional amendment cannot modify the basic structure of the Indian Constitution. The basic structure doctrine holds that the Indian Parliament does not have the power to amend or abolish the Indian Constitution. The protection of individual rights under the law is one of the integral parts of this doctrine.
What power does the Supreme Court have in the Constitution
Part III (Articles 12-35) of the Indian Constitution protects certain freedoms. At the same time, Article 13 prohibits the implementation of any new law that may infringe upon these freedoms. This provision empowers the courts to ascertain the constitutionality of laws made before and after the ratification of the Constitution. To protect fundamental rights, the Supreme Court can issue writs such as habeas corpus, mandamus, certiorari and quo warranto. The authority of the judiciary over the legislature and the executive upholds the provision of separation of powers of the Constitution.
Making laws is the sovereignty of Parliament, we will not interfere: Supreme Court
Anil Singh explains that during the hearing of a case in February 2023, the Supreme Court had said – making laws is the sovereignty of Parliament, we will not interfere in it. With this remark, the apex court had refused to consider the demand to prevent a candidate from contesting elections from two assembly or parliamentary constituencies simultaneously. In such a situation, if challenged in the case of Waqf Amendment Bill, the Supreme Court can say something similar.
What did the then CJI Chandrachud say then
At that time, a bench of Chief Justice of India i.e. CJI DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala said that candidates can contest elections from different seats for many reasons. This is a question of legislative policy falling within the scope of the sovereignty of the Parliament. After all, it is the wish of the Parliament whether to take political democracy forward by giving such an option or not. Let it decide.
Can be challenged in court on these grounds
The opposition can challenge it in the Supreme Court on these constitutional grounds.
This bill violates Article 25 of the Constitution i.e. the right to religious freedom. Article 25 gives Indian citizens the right to manage property and institutions according to their religious beliefs. In such a situation, if the administration of Waqf properties changes or non-Muslims are included in it, then it may violate religious freedom.
Violation of Article 26 of the Constitution i.e. the administration of religious institutions. This article gives religious communities the right to manage their religious institutions. This bill may reduce the rights of the Waqf Board, which may affect this provision.
