"The Modi-led coalition care two hoots about Parliament".
If you are looking for more examples to bolster this proposition, which members of the Opposition often make, then the week began with another Black Monday for the Union government. The Supreme Court did more than just rap the knuckles of those who indulged in subterfuge legislation. In its interim order, the highest court in India stayed two of the most contentious provisions of the Waqf Act, 2025. One, a person has to be a practising Muslim for five years before he can dedicate a property as waqf. Two, the designated officer can adjudicate the rights of personal citizens. Both these key provisions were stayed.
The passing of the Waqf (Amendment) Bill, 2025 in Parliament was marked by chicanery and evasive tactics. Even a casual observer of Parliament can outline how the BJP-led coalition is making a mockery of parliamentary procedure.
- The motion to refer the Bill to a Joint Committee of both Houses of Parliament was, again, moved on the last day of the session.
- When the report of the Joint Parliamentary Committee (JPC) was presented in Parliament, dissent notes by members of the Opposition had been blotted out by using a whitener. (I am not making this up! This actually happened this year in Parliament.) After aggressive protests by the Opposition, a corrigendum was added, which contained the notes that were redacted.
- "For the night is dark and full of terrors" - Game of Thrones. The Waqf Bill was passed in Parliament in the dead of night. Around midnight in Rajya Sabha, and before one in the morning in Lok Sabha. Incidentally, Manipur was discussed at 3 am.
Presumption of Constitutionality
One major argument made in this case was of the principle of presumption in favour of constitutionality. This means that when a law's constitutionality is challenged, courts should generally presume the law to be valid and uphold it unless it is clearly proven otherwise. This doctrine originated to maintain judicial restraint, uphold the separation of powers, and respect the legislature as the representative body enacting laws within the constitutional framework. It assumes that legislatures act in good faith and within their authority, and that invalidating laws should be an exception, not the default. The Supreme Court of India, like many constitutional courts worldwide, has repeatedly affirmed this presumption, stating that courts should only strike down legislation if it is "manifestly unconstitutional" or violates fundamental rights beyond reasonable doubt.
However, given recent trends where laws have been used selectively to impose disproportionate burdens, regulate minority rights restrictively, or enable the state to overreach in areas constitutionally protected (like religious freedom and equality), the presumption in favour of constitutionality merits re-evaluation.
Targeted Laws
Governance under the BJP has revealed a striking pattern: the rise of customised, targeted laws designed to affect specific communities while leaving others untouched. The legal pluralism in various religions governing themselves, was a system adopted by the country with the intention to respect diverse customs. But this is increasingly being made a source of legal exceptionalism, where groups are treated not as citizens under a single rule of law but as subjects of special, more restrictive, legal regimes. The effect is highly symbolic: the law itself becomes a political message, not merely a regulatory tool. Citizens are left with a sense that laws are designed "for them" not to protect or administer society, but for surveillance, constraint, and to signal hierarchy.
The State As Judge Of Identity
Some examples of these laws are the religion-specific Citizenship Law creating exclusions based on faith, and anti-conversion laws in states targeting interfaith marriage and religious conversion (12 states including Madhya Pradesh, Chhattisgarh, Gujarat Uttar Pradesh, Karnataka, Rajasthan). Along with targeting, what these laws also do is that they place the state in a position of the judge of identity. Including the five-year requirement in the Waqf Act, these laws rely on the State to decide who qualifies as a minority and who does not. Once the State assumes the right to decide who qualifies as a legitimate member of a community, it establishes a precedent that identity is conditional; citizenship, faith, and rights can all be reduced to state-certified categories. When the State gets to decide who counts, democracy itself is at risk.
Does the Waqf Act flout rights such as equality before the law (Article 14)? Does it flout freedom of religion (Articles 25 and 26)? Does it flout the prohibition of discrimination on grounds of religion (Article 15)? These are the probing questions that India hopes will be addressed by the Supreme Court.
Research credit: Chahat Mangtani
(Derek O'Brien, MP, leads the Trinamool Congress in the Rajya Sabha)
Disclaimer: These are the personal opinions of the author
