New Delhi: Every Religion in Bharat is treated as equal since time immemorial and it was reiterated by the Constitution makers by inserting Articles 14, 15, 16, 19, 21, 25; even after the unfortunate partition of 1947 which led to creation of a Muslim nation on the one hand and our great Country “India that is Bharat” based upon religious neutrality. After 26.01.1950, the Constitution mandates that the State cannot give preference to a religion over others. The laws enacted by the State cannot be discriminatory in the matters pertaining to religious denominations.
The Wakf Act 1995 is unconstitutional for violation of Articles 14, 15, 16, 21, 25, 26, 27. Therefore, it should not be amended but must be abrogated and a secular law (Uniform Charity & Endowment Code) should be enacted in spirit of the constitutional principles. The reasons are dilated hereinafter:
Article 13(2) of the Constitution provides that the State shall not make any Law which takes away or abridges the rights conferred by Part-3 of the Constitution and any Law made in contravention of the Part-3 shall be void and unconstitutional.
Article 14 of the Constitution guarantees every citizen and person equality before the law and the equal protection of the laws within the territories of Bharat and Article 15 strictly prohibits the discrimination based on the ground of religion.
The Property Right is not a Fundamental Right: The Wakf Act 1995 in so far it relates to management of affairs in matters of religion and to establish and maintain institutions for religious and charitable purposes are concerned, is one facet of the Act. However, the scheme of the Wakf Act moves around the fulcrum of “Property Rights”, which is not a fundamental right. Therefore, the matter of Wakfs starting from its definition to acquisition and management of properties by Wakfs must be in consonance with Articles 14, 15 and 21 of the Constitution.
Wakf Board Functions Against the Due Process of Law: Wakf Board claims to control a huge chunk of movable-immovable properties, but, in most of the cases, without sufficient and credible evidence and without following the due process of Law. According to one estimate, after the Ministry of Defence and Ministry of Railways, the Wakfs claim to control the largest pool of immovable properties. The Moot Question here is not about the capacity of a religious establishment to hold property but the lack of a Fair, Transparent, Secular and equitable procedure and proprietary in Acquisition, Identification, Holding and Management of properties by Wakfs.
Section 3(r): The definition of Wakf is beyond the administrative or judicially manageable limits. The phrase ‘waqf means the permanent dedication by any person’ leaves it wide open to include any property acquired by whatsoever means by the person making such dedication. Therefore, it is necessary to qualify the dedication by adding phrases like “provided the property is legitimate and must have been acquired by the dedicator in accordance with law”.
Section 3(r)(i) states that a ‘Waqf shall not cease to be a Waqf by reason only of the user having ceased irrespective of the period of such cesser’. This provision is vague and has opened Pandora’s box of litigation on the pretext that once upon a time, the property was a Waqf property. A limitation is necessary for making a genuine verifiable legitimate claim. Inclusion of all types of land including Community Land (Shamlat Deh) for dedication to Waqf within Section 3(r)(ii) is manifestly arbitrary, irrational, against public policy & violates Articles 14-15.
Section 3(s): Waqf Deed must be a registered deed for the Waqfs and previously created Waqfs may be given an opportunity to register after establishing creation of legitimate Waqf by sufficient credible evidence. The properties belonging to Waqfs may be maintained in the Register provided for this purpose in the District Revenue Office so that the public at large would know about the properties subjected to Waqf. The definition of “Mutawalli” is totally vague and uncertain. The use of words “any person appointed, either verbally” leads to uncertainty and the resultant disputes. The qualifications and a well-defined procedure for appointment of Mutawalli must be made in the Act.
Section 4(3) cannot serve a meaningful purpose unless the definition of Waqf and Mutawalli are crystallized before initiating a Survey of Auqaf. The survey must be undertaken after giving the Public Notice like Consolidation Survey or Ceiling Survey etc, otherwise, the unscrupulous persons under the garb of Waqf will not only usurp the community land but also public property and private properties lying unattended by misguiding the Survey Officers.
Section-6: There is no provision for giving Public Notice as per CPC by the Survey Commissioner before inclusion of the name of Waqf-Auqaf in the list being recommended to the Government under Section-4 on the basis of which the final list is published by the Government under Section-5. This provision is arbitrary, unreasonable, against natural justice and hence offends Articles 14-15.
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Conferring Unbridled powers on the Survey Commissioner is absolutely in derogation of the interest of the Muslims and non-Muslims. One religious group cannot be given extraordinary preference over the people of other religious denominations in the matter of Identification and Determination of nature of properties, hence, it is manifestly arbitrary & violates Articles 14-15.
Wakf Survey is done Against the Provisions of Civil Procedure Code 1908: Under the Civil Procedure Code and other laws envisaging Survey, Commissions of Enquiry or Discovery, it is always a precondition that those affected would be heard first and the process is participative. It is conforming to fairness, reasonableness and natural justice with limitations on exercise of any power by statutory bodies which emanates from Article 14 of Constitution. Hence provision of Survey under Wakf Act must be in consonance with the CPC and Article 14.
Sections 6-7 are discriminatory on the ground of religion. Waqf tribunals consist of Muslims alone, perhaps on the assumption that all the disputes relating to Waqf and their properties would arise amongst the Muslim only but the situation is totally different. Unless the definition of Waqf is modified to exclude the possibility of inclusion of properties of other communities or non-Muslims in the Waqf, asking the aggrieved person to approach the Tribunal does not inspire confidence and transparency. Further, in case of properties belonging to non-Muslims, the remedy lies in Civil Courts. So, a non-Muslim cannot be compelled to approach the Tribunal for resolution of a dispute. A non-Muslim is unlikely to know the terminology, practices and customs of Muslims. Hence, it is arbitrary and unreasonable to compel a non-Muslim to seek a remedy from a forum which functions on the basis of Islamic religious tenets and principles.
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Section-8: Bharat is a secular country from ancient times and it was reiterated by parliament in 1976 by adding the word ‘Secular’ in the Preamble. Therefore, the State cannot grant, at the Cost of Public Exchequer, the expenses incurred for the verification of Waqfs and its properties while there is no similar exercise nor a grant of expenses for the Survey of other Religious Institutions and their properties. The properties of Waqf do not benefit the secular State or Public in general. Therefore, Cost of Survey for the verification of Waqf and its properties must not be borne by the State. The survey may be undertaken at the cost of Waqfs. Therefore, Section-8 not only offends Article 14, 15, 27 but also the principles of Secularism. The Apex Court in the catena of decision has held that Secularism is a basic feature of the Constitution and the Law must be consistent.
Sections 28-29: Waqf Board has been made a Superior Authority over and above the District Administration. At the same time there is no similar provision under any Law conferring same or similar status and power to the Managers of Hindu Trusts. Therefore, the provisions contained in Section-28 is discriminatory on the ground of religion; manifestly arbitrary, irrational and offends Articles 14, 15, 27. Section-29 gives special status to Chief Executive Officers of Waqf Boards and Waqf properties and even to the properties which are claimed to be Waqf properties. Hence, this provision is also manifestly arbitrary & violates Article 14.
Section-36: The person desirous of registration of Waqf can file an application giving particulars contained in Section-36 and Waqf Board can register the property as Waqf property. There is no procedural safeguard to find out the genuineness and legitimacy of the claim of Waqf over a property before registration.
Section-40 is Arbitrary, Irrational and Unconstitutional: and sweeping powers have been conferred on Waqf Board to declare any property as waqf property notwithstanding anything contained under any other Act including the Trust Act, 1882 and the Societies Registration Act, 1860. Such unbridled power conferred upon Waqf Board is unprecedented and unconstitutional because it gives an overriding power to a religious entity over Secular institutions like Trusts and Societies without any rationale.
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Section-40 violates natural justice principle of Audi alteram partem: Waqf Board is a body of Muslims alone and it has been given power to decide as to whether any property is a genuine and legitimate Waqf property or not and even it can suo-motu decide whether any property belongs to trust or society is a Waqf property. No safeguard has been given to persons whose property would be subjected to inquiry by the Waqf board. They have no occasion or opportunity to know about the decision, if any, passed by the Waqf Board under Section-40, which violates the natural justice principle of Audi alteram partem.
Sections 36 and 40 are anathema to Rule of law and constitutional morality: Whether the property owned by trust, society, mutt and non-Muslims is a Waqf property, must be decided by the Civil Court only. The power given to the Waqf Board under Section-40 is arbitrary and against the principle of natural justice and fair play i.e. Nemo Judex In Causa Sua. A person interested in a matter cannot be invested with the power to decide any question involving the interest of an adversary party. Thus, manifestly arbitrary, irrational and unconstitutional.
Right to Justice: It is unreasonable and discriminatory to compel the non-Muslims, trusts, mutts, societies, temples, akharas, Gurudwaras to submit to the jurisdiction of a Muslim religion-based authority for protection of their property rights. The Waqf Board cannot be conferred with the jurisdiction to decide the question of title of the properties possessed and controlled by non-Muslims.
Parliament Can Establish Only Secular Tribunals like a Rent Control Tribunal and Service Tribunal etc., and they cannot operate on a Communal basis. The Tribunals must function as per universal legal principles and in accordance with principles of fairness and natural justice. In contrast Waqf Tribunals composition is religious and its procedure is triggered by a Communal ex-party survey. The orders passed by the Communal Waqf Board impacts not only ordinary Muslims but people belonging to other communities as well. Its impact is very grave, euphemistically, and therefore the judicial or quasi-judicial decision-making body cannot be communally composed.
Section-83 and 85 is manifestly arbitrary, irrational and unconstitutional. Every dispute of Civil nature must be decided by Civil Court by virtue of Section-9 of the Civil Procedure Code. There are cases where Complicated Questions of Facts and Law relating to Property between Communities are involved which needs expertise of the Civil Procedure Code and other Laws. The Wakf Tribunal being a Quasi-judicial authority is not capable of dealing with such questions. Therefore, establishment of a Tribunal to decide all questions relating to Waqf property is irrational, illegal and against the concept of justice as Civil and Property disputes can be effectively decided only by Civil Courts only.
Section-107 is arbitrary: The Limitation period under Section-107 and proviso to Section-6 are incongruous and discriminatory. Under Section-6, no suit is permitted to be filed before the tribunal after 01 year from the date of publication of the list of auquaf i.e. a person aggrieved by inclusion of a property in the list of auquaf cannot file a suit after 01 year from the date of publication of List. But under Section 107, there is no limitation period for seeking possession of immovable property composed in a Waqf. Therefore, the Act is heavily loaded in favour of Muslims and is discriminatory and violative of Articles 14-15.
Section-107 is irrational: Limitation cannot be removed in the matter of recovery of Waqf property, which is not available to other sections. The provision is highly discriminatory and against the fate of properties belonging to Muslims & non-Muslims. Effect of Section-107 is that Waqf Board has been given free hand to recover any property even after 50 years but any aggrieved person does not have these wide powers regarding the time limit.
Section-108A gives an overriding effect to the Wakf Act, 1995 over other Acts . Waqf Act is a statute for sub serving the interest of Muslim. Section-108A gives primacy to Muslims over other religions, which is in conflict with the Preamble and basic structure of the Constitution. State cannot give preferential treatment to a particular religion in the matter of grant of property rights.
Against Secularism: It is unfathomable to believe that the Secular State authorities have been mandated to follow the orders of a Muslim Waqf Board. The provisions for implementing the orders of the Muslim Waqf Board by the Collector/District Magistrate are derogatory and unconstitutional. A Collector is the representative of a Secular Government. Therefore, after limiting the jurisdiction of the Waqf Board to the properties belonging to Muslims alone and the claimed properties of non-Muslims to a Civil Court, a provision should be made for the Waqf Board to approach the Civil Court for execution of the orders.
The Wakf Act 1995 is operating like External Invaders looting properties of other communities in a conquest. When the Waqf based on the extant law makes inroads into the property rights belonging to members of non-Muslims or into their religious places, it breaches Articles 25, 26, 29, 300 A. It is manifestly arbitrary and discriminates in a hostile manner and breaches Articles 14-15. Therefore, the separate treatment of Muslim religious trust and endowments called Waqf should be undone immediately. There should be a Common/Uniform Law for Religious Trusts and Endowments and these trusts and endowments should establish their legitimate claims and genuine ownership before the Civil Courts only.
Against the Golden Goals of the Preamble of the Constitution: Land title dispute between Muslims and non-Muslims must be settled through land laws before Civil Court. The Wakf Act makes the process of determination of Waqf title resembling the manner in which the Qazis used to decide and declare the Waqf and its entitlement during the era of Mughal or British rule. It is necessary to state that Religions Endowments, Temples, Religious Institutions of other Minorities approach Civil Court to establish their claims on properties by filing Civil Suit under the provisions of Civil Procedure Code 1908. There should not be discrimination in matters of legal remedies for "We the People of India”.
Mr. Asaf A.A. Fyzee in his celebrated book ‘Outlines of Muhammadan Law’ has mentioned that the Institution is in some respects a handicap to the natural growth and development of a healthy national economy. He describes possession of enormous Wakf land as possession of DEAD HAND. He gives examples of enormous land held under Waqfs in Turkey, Algeria and Egypt. He writes that in 1924, the Turkish Republic abolished the Ministry of Wakfs and it was taken over by a General Directory or a Secular State administration.
The statutory legal history of the Waqfs can be traced back to the Religious Endowment Act 1863. It was a common enactment for the appropriation of the rents, and produce of land granted for the support of mosques, temples, colleges and other purposes etc. Under this Act, Section-22 expressly kept the government away from superintendence of any land or other property granted for support of Mosque, temple or other religious establishments.
The Privy Council passed a judgement in Abdul Fata Mahomad Ishak Vs. Russomoy Dhur Chowdhry which paralyzed the institution of Wakf-alal-aulad. In order to deal with this situation, the Mussalman Wakf Validating Act, 1913 was promulgated. This act intended to reproduce Wakf-alal-aulad in a codified form with certain safeguards for the authenticity legitimacy of the Wakfnama and also for the prevention of fraud upon creditors or otherwise.
The Mussalman Wakf Act 1923 was promulgated for better management of Wakf property and for ensuring the keeping and publication of proper accounts in respect of such properties. This Act did not include Wakf-alal-aulad covered by the Wakf Act 2013. Section-3 of this Act obliged Mutwalli to furnish particulars relating to the Wakf to Court. The Mutwalli was required to furnish a copy of the deed or instrument creating the Wakf. The Court was mandated to publish the particulars submitted by the Mutwallis and any person could petition the Court for further enquiry. This Act did not affect other enactments providing for the control or supervision of religious or charitable movements.
The Bengal Wakf Act 1934: Section 94 of the Act granted power of superintendence over the Wakf Board to the State government along with the power to supersede the Board. The crux of this discussion is that there was no separate tribunal for deciding the disputes relating to the Waqf properties.
Against the Constitutional Ethos: The Wakf Act 1954 was promulgated after the 26.01.1950 but in ignorance of the constitutional scheme, several definitions from the colonial legislations were verbatim adopted in the Act. However, Section-6 provided that the board or Mutwalli of the Wakf could institute a Suit in a Civil Court of competent jurisdiction for the decision on the question whether a property is a genuine legitimate Wakf property or not.
The "Grants” or “Shamilat Deh” were not specifically included in the definition of Waqf before the 1954 and 1995 Act. The scope of Wakf was expanded in 1954 and 1995. That has led to a huge expansion of Wakf properties post-independence. The land which was "in common” or “community land” was included as Waqf property against the due process of law. These alterations are the source of most of the evils associated with Waqf Properties and Waqf Board activities. The amendment Bill, therefore, needs to include a specific provision to undo the enlargement and de-recognize the illegal Grants.
Dedication or Grants to Waqfs made before Independence must be duly verified and established. Post Independence Land Reforms and Ceiling Laws prohibit acquiring of more than stipulated land and no individual including a person of any religious denomination could have lands spanning over whole villages to dedicate but Waqf Board is doing the same. The Centre or States have not given any grant of land enabling dedication as Wakf.
The land pillaged and encroached by foreign invaders through conquest, could not be granted as Waqf. If Wakf is dedicated to Allah, the god almighty, the property dedicated in the name of God must be legally owned and legitimately acquired and therefore, the property acquired by force, coercion or in an illegitimate manner could not be dedicated to the God as Wakf.
The lands granted as Wakf before independence need to be accounted for and the legitimacy of the source must be verified. The sovereign kings never assumed legitimate ownership rights over the land which kept changing hand by force from one ruler to another. On the tip of the sword, they occupied the lands. A dedication to Waqf should be one’s own acquired legitimate property as per Islamic Law. Once we became independent, all the land went to the Government of India as ‘Trustee of the People’ and the Government has a sovereign right to determine a Grant and resume the land by law. Therefore, the lands occupied or granted by the Invaders must be used for public purposes only.
Waqf Act, 1995 has closed the doors of Civil Court and enlarged the scope of ‘Grants’ by including ‘Shamalat deh’ into the definition of Waqf. The enlargement of the definition is one of the major problems emanating from the Wakf Act, 1995. The separate tribunal and Board were presumably envisaged for administrative convenience and better protection of genuinely created legitimate Waqfs by Muslims. But it has caused administrative chaos. Ex-parte surveys lead to coverage of villages, public institutions and temples etc.
The Wakf Act, 1995 in general is discriminatory because no other Act has been made to protect similar activities/properties of other minorities like Jainism, Buddhism, Sikhism, Judaism, Bahaism, Zoroastrian, Christian etc. Under the Constitution, Waqf has not been given any special status and the same is at par with other charitable and religious institutions, thus, it cannot enjoy any special powers and rights over and above those applicable to Trusts, Charitable and Religious Institutions being run by non-Muslims in the matter of properties.
The religious Trust & Trustees, Charities & Charitable Institutions, Religious Endowment & Religious Institution of Hindus and other minorities do not enjoy a similar legal dispensation like the Wakf Act, 1995. Hindu’s Trust & Trustees, Charities & Charitable Institutions, Religious Endowment & Religious Institution, are subjected to severe restrictions. Hence, there is a clear breach of Article 14, 15, 21, 25 and 26 of the Constitution.
Waqf is not mentioned anywhere in the Constitution. However, if the Act is enacted to secure fundamental rights of Muslims guaranteed under Articles 25-26, even then, it must be inclusive & democratic. Centre cannot make Tribunals arbitrarily beyond the scope of Articles 323A and 323B, but if the Act is enacted using the plenary powers under Article 245 and Entry-97 of List-1, Schedule-7; then Tribunal must be Religion Neutral and in consonance with Articles 14-15.
The Constitution establishes 03 types of Courts: (i) Apex Court under Articles 124-146, (ii) High Courts under Articles 214-231, and (iii) Subordinate Courts under Article 233-237. The Framers wanted that all the matters relating to Civil dispute shall be decided by Courts of Original Civil Jurisdiction constituted under Chapter-VI of the Constitution and Section-9 CPC. Therefore, a Tribunal consisting of Muslims alone and permitted to follow its own procedure, is inconsistent with the Rule of Law, constitutional scheme & right to justice.
The Waqf Board, which has Muslim MLA, Muslim MP, Muslim IAS Officer, Muslim Planner, Muslim Advocate, Muslim Scholar and Muslim Mutawalli; is paid from public exchequer, though Centre doesn't collect even a single rupee from any Mosque, Mazar and Dargah. On the other hand, States collect around 01 Lac Crore from 04 Lac Temples but there are no similar provisions for Hindus and Jains. Hence, it is violative of Articles 14, 15 & 27 of the Constitution.
The Wakf Act 1995 is Against the Basic Structure of the Constitution: The Indian Trustees Act 1866, Indian Trust Act 1882, Charitable Endowment Act 1890, Official Trustees Act 1913 and The Charitable and Religious Act 1990 were framed to manage Trusts and Religious Endowment of all communities. But rather than unifying them and making a "Uniform Code for Trust-Trustees, Charities-Charitable Institutions, Charitable-Religious Endowments and Religious Institutions", the Centre is perpetuating an invalid Act which is discriminatory. During the British Raj, there was no Constitution or Fundamental rights like Articles 14-15, even then, Wakf Board was not given superseding powers.
Unbridled Power: The Religious Endowment Act 1863, Indian Trust Act 1882 and Charitable and Religious Trust Act 1920 have provisions for creation, management and resolution of disputes but the Wakf Act 1995 has given wide and uncontrolled powers to Waqf Boards and Tribunal and Waqf Properties have been placed over and above other Charitable Religious Institutions. No other enactment has conferred such wide powers and status. These wide and unbridled powers are anathema to the Rule of Law and constructional scheme.
Against Secularism: Centre cannot make any law giving special status and rights to a particular religious community by superseding the secular principles contained under the Constitution. The Government cannot make any law in favour of a religious community in contravention of Articles 14 and 15.
Creation of Waqf Tribunal is arbitrary and offends Articles 14-15 and even otherwise Parliament has no power to create any Tribunal beyond the scope of Article 323-A. There is no elaborate provision for giving notice and opportunity of being heard to Muslims as well as non-Muslims while including any property as Waqf property in the List under Section-5 or Section-40. No provision has been made to give Public Notice as per the Civil Procedure Code and therefore Muslims as well as non-Muslims may not be able to know about the order and their fate to get justice, which is a fundamental right, cannot be sealed forever.
WAKF ACT IS The Biggest Fraud on the Constitution and A Colourable Legislation. The Constitutional Anathema is the role of an interested entity as a petitioner, prosecutor and judge in his own cause, but that is exactly the situation of the Wakf Board under Wakf Act 1995. The Constitution postulates separation of judicial functions from the administrative functions. However, the Wakf Board created under the Wakf Act, 1995 violates the principles of separation of judicial function from the administrative function. Matters of property disputes which are essentially title disputes have been taken away from the Court and conferred upon a party which is an interested party in the dispute.
All the matters relating to Civil dispute must be decided by the Courts of Original Civil Jurisdiction constituted under Chapter-VI of the Constitution. Under Article 323-A or 323-B, the Land/Property dispute or the disputes relating to Waqf, Trust or Mutts’ properties have not been included. Hence, creation of an all-Muslim Tribunal for deciding the disputes between the Muslims and non-Muslims is manifestly arbitrary, irrational and unconstitutional.
Therefore, Centre must abrogate the Wakf Act 1995 and enact a Common Law for all religions, keeping in mind that Property Right is not a fundamental right, and Constitutional Goals can’t be achieved by piecemeal amendment in the Wakf Act. Not only the Wakf Act, Centre must repeal all existing laws related to Trust & Trustees, Charities & Charitable Institutions, Religious Endowment & Religious Institution, i.e. Indian Trustees Act 1866, Indian Trust Act 1882, Charitable Endowment Act 1890, Official Trustees Act 1913, Charitable & Religious Act 1990 and Wakf Act 1995, and enact a ‘Uniform Code for Trust & Trustees, Uniform Code for Charities & Charitable Institutions, Uniform Code for Religious Endowments & Religious Institutions’, in spirit of Entry-28, List-III of Schedule-VII of the Constitution.
Disclaimer: The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of LawStreet Journal.
