Not just on Waqf law, Opposition MPs turning litigants more often in Modi era; here's why

On Wednesday (April 16), the Supreme Court will hear a clutch of petitions challenging the recently-enacted Waqf Amendment Act, 2025, on a slew of grounds, including constitutional validity. Among the petitioners in the case are parliamentarians cutting across the Opposition’s ranks in both Lok Sabha and Rajya Sabha.

Most of these MPs – Mohammed Jawed, Imran Masood (Congress), Asaduddin Owaisi (AIMIM), Mahua Moitra (TMC), Zia Ur Rehman (SP), and Manoj Kumar Jha (RJD) – had stridently opposed the controversial legislation when it was debated. They had implored Prime Minister Narendra Modi’s government not to push ahead with the legislation, which in their view was not just “communally divisive” but “blatantly unconstitutional”.

The Bill, of course, was cleared by both Houses of Parliament and assented to by President Droupadi Murmu post-haste, opening the floodgates for petitions that have now urged the Supreme Court to strike the legislation down.

MPs turning litigants

Parliamentarians moving the top court against various Acts of Parliament is not new. Yet, even a cursory glance at the legislative record of the Modi regime’s past decade suggests that the frequency of MPs turning litigants against laws pushed through in Parliament despite belligerent resistance by the Opposition and diverse stakeholder groups alike has been steadily rising.

The first five years of the Modi regime saw stray challenges to its legislative agenda by sitting MPs who sought the apex court’s directions to strike down a new law, either entirely or partially. The most prominent one, arguably, was the petition by Congress MP Jairam Ramesh. Ramesh had challenged the passage of the Aadhaar Bill as a Money Bill in 2017 but got an unfavourable 4:1 Constitution Bench verdict the following year.

Also Read: Exclusive: Kapil Sibal calls Waqf law 'unconstitutional', alleges political agenda

Another instance during this period was that of the legal challenge posed by election watchdogs, civil society members, political parties such as the CPI(M), and individual MPs to the Centre’s Electoral Bond scheme, introduced in 2018 and eventually scrapped by the top court just ahead of last year’s general elections.

More legal challenges

Following the 2019 general elections, in which Modi secured an even more robust majority than the one he got five years earlier, the Centre’s legislative agenda too became more controversial and, thus, more prone to legal challenges.

Be it the abrogation of Article 370, the Citizenship Amendment Act, or the Chief Election Commissioner and Other Election Commissioners Act hastily brought in during the final year of Modi’s second term in office to subvert a top court verdict on the process of appointing election commissioners – all triggered Opposition MPs and parties to move the Supreme Court demanding that these laws be scrapped. While the government heaved a sigh of relief when the apex court upheld the abrogation of Article 370, the challenges to CAA and the Election Commissioner Act are still pending final disposal.

Also Read: SC to hear petitions challenging Waqf Amendment Act on April 16

The petitions against the Waqf Act have come even before the Modi regime could complete the first year of its third term in office. There are also enough indications from Opposition MPs such as Gaurav Gogoi of the Congress and John Brittas of the CPI(M) that the Digital Personal Data Protection Act, enacted in 2023 but not yet made operational, could face a slew of petitions if the Centre doesn’t repeal “unconstitutional” provisions of the law before rules for its roll-out are framed.

Absence of parliamentary scrutiny

This apparent trend of MPs turning litigants – as opposed to the usual practice of common citizens or organisations moving court against a law they are adversely impacted by – has coincided with the Opposition’s recurring accusations of the Modi regime’s scant regard for real bipartisan parliamentary scrutiny of proposed laws.

Also Read: Waqf Act: AIADMK slams Modi’s remarks, says BJP 'bulldozing' one section of people

There is ample data on record to suggest that the past decade has seen fewer discussions in Parliament over crucial Bills and a steady decline in the otherwise common practice of referring controversial or crucial legislation to parliamentary committees for thorough scrutiny. An exception to this has been Modi’s current term, which has witnessed the government readily referring legislation such as the Waqf Amendment Bill and the proposed law on simultaneous polls to Joint Parliamentary Committees.

Crafty ploy?

However, if the proceedings of the JPC on the Waqf Bill are any yardstick, the Centre’s seemingly-generous outreach to the Opposition for greater scrutiny of contentious laws in parliamentary committees has merely been a crafty ploy to claim that such legislation was thoroughly debated upon before being brought before Parliament for consideration and passing.

Also Read: Waqf (Amendment) Act comes into force

The tediously long “debates” in Parliament over the Waqf Bill – 12 hours in the Lok Sabha and 13 hours in the Rajya Sabha – made it clear that the Centre had made no concessions to address the concerns raised by the Opposition over the Bill. Opposition MPs in both Houses cried themselves hoarse claiming the JPC had not accommodated any of their suggestions in its final report on the Bill while in Parliament, the Treasury Benches, with numbers clearly on their side, managed to have all amendments moved to the law by the Opposition negated.

Last recourse

As such, it is hardly surprising if MPs from across the Opposition spectrum have now knocked on the Supreme Court’s doors to get what they couldn’t in Parliament – striking down of the new Waqf law.

“In an ideal parliamentary democracy, the Opposition should never need to challenge a law in courts. Parliament makes all platforms available to the Opposition to have its views incorporated in a Bill," says Congress’s Saharanpur MP Imran Masood, one of the several Opposition MPs who have moved the top court against the new Waqf law.

"Unfortunately, what we are seeing increasingly over the past decade is muzzling of the Opposition on every issue, including scrutiny of laws, while parliamentary standing committees, select committees, and even JPCs have been turned into rubber stamps for the government. In such a scenario, what option is left before Opposition MPs except to move court each time this government brings a law that violates the Constitution,” Masood adds.

Also Read: Fresh plea in SC challenges validity of Waqf (Amendment) Act

‘Undermining every institution’

For Trinamool Congress’s Krishnanagar MP Mahua Moitra, the sad reality of parliamentarians being forced to seek “scrutiny of laws by the court instead of Parliament” is yet another sign of how the Modi government has been “undermining of every single institution of the country, including the most sacred temple of our democracy, which is Parliament”.

A senior Opposition leader who did not wish to be named lamented that the government’s “obstinate refusal to accommodate any suggestion given by our side on any legislation has turned what should be the last resort for an MP (moving court against a law) to being the first resort”.

‘Legislative business a joke’

“I have lost count of the number of times this government has brought unconstitutional Bills before Parliament; Bills everyone knew cannot stand legal scrutiny... they have turned legislative business into a joke. I remember telling the floor leader of another Opposition party on more than one occasion that there is no point opposing a Bill in Parliament now and we should just wait for it to be enacted so that it can be challenged in the Supreme Court,” the Opposition leader said.

Also Read: Waqf (Amendment) Bill gets President's assent

He added, “With presiding officers (Lok Sabha Speaker and the Chairman and Deputy Chairman of Rajya Sabha) functioning like BJP whips and not even allowing the Leaders of Opposition in their respective Houses to make an uninterrupted speech, be it during discussion on a Bill or on any other matter, is there any point in wasting our breath in Parliament?”

Scope of judicial scrutiny

Even as Opposition parties and their MPs increasingly look towards the apex court for correcting alleged legislative lapses of the Centre, a section among them is also wary that the government may soon seek a way to “reduce the scope of judicial scrutiny of certain laws”.

Much of this fear, perhaps, stems from the repeated assertions made by Rajya Sabha Chairman Jagdeep Dhankhar during the budget session of Parliament, which concluded earlier this month. Dhankhar, often accused by the Opposition of acting like a “government spokesperson” and the only Vice President in the history of the Indian Republic against whom the Opposition moved a motion of impeachment (though disallowed), has been an unapologetic votary of reviewing the scope of judicial scrutiny of Acts passed by Parliament. Since he assumed office as Vice President in August 2022, Dhankhar’s pet peeve has been against the Supreme Court’s 2015 decision of striking down the National Judicial Appointments Commission (NJAC) Act.

Dhankhar’s questionable role

During the recently-concluded budget session, Dhankhar beseeched MPs to “seriously reflect” if courts could strike down in entirety certain laws, particularly constitutional amendments. The discussion on the Waqf Bill too saw the Rajya Sabha Chairman making a strident counter-strike against the Opposition’s repeated assertion that the controversial legislation, if passed by the House in its current form, would be struck down by the courts.

Also Read: Congress, AIMIM leaders move SC against Waqf (Amendment) Bill, 2025

At one point, Dhankhar’s reprimands on this score led to a verbal duel with Congress MP and legal luminary Abhishek Manu Singhvi when the latter expressed hope that the apex court would “eventually declare this law unconstitutional and strike it down”. When Dhankhar took umbrage at Singhvi’s suggestion and said, “you cannot make such statements”, the senior advocate reminded the Rajya Sabha Chairman that “as an MP, I have a right to express my views”.

‘Judiciary – our only hope’

Opposition leaders say Dhankhar may be right in saying that Parliament’s supremacy in enacting laws needs to be respected, but also add that this supremacy can only be respected if other parliamentary conventions, including the Opposition’s right to speak on critical issues and contribute to law-making, are upheld with the same conviction.

Also Read: DMK to challenge Waqf Bill in Supreme Court, says Stalin

“You cannot expect the Opposition to simply act like blind and mute bystanders while bad laws, unconstitutional laws, are passed by Parliament. Yes, Parliament’s supremacy in enacting laws is there, but the Opposition has a right to point out flaws and demand amendments. The responsibility of ensuring that Parliament’s supremacy in law-making is protected lies with the government, and the Lok Sabha Speaker and Rajya Sabha Chairman have to ensure that the government fulfils this responsibility. If the Opposition is not heard, our suggestions are not accepted, and the laws Parliament enacts are unconstitutional, then the judiciary is our only hope and MPs, like any ordinary citizen, will have to challenge such laws in court,” SP MP Zia Ur Rehman told The Federal.