Over one crore responses are reportedly received thus far by the Joint Parliamentary Committee (JPC) on the Waqf Amendment Bill, 2024. The pre-legislative consultation process on this issue is one of the widest in independent India, even surpassed by the recent consultation process on the Uniform Civil Code (UCC), wherein about 75 lakh responses were received.
Doctrinally, the ‘Waqf,’ an unconditional and irrevocable dedication of property to the Almighty Allah, is purely and exclusively Islamic. Yet, the legal and social implications of Waqf are not limited to Muslims. The Waqf, in the ultimate corporal sense, is property. And none dare to dispute that property and dispute are inseparably intertwined. This is why, with all its innate religiosities and sensitivities factored, there is a pressing need to objectively evaluate the existing law and proposed amendments by insulating it from the political polemic and religious rhetoric.
Waqfs and SDGs
One of the least deliberated dimensions of Waqf properties is the historic role they played, and mainly the future potential they possess, in conserving the ecological balance. If not for the legislative protections accorded, the Waqf properties, long ago, would have been converted into mining fields and concrete jungles. Consciously or otherwise, the Waqf properties remain lung spaces, particularly in the urban agglomerates and green islands in rural landscapes. Sadly, this dimension has not been pressed to serve in ecological debates. Interestingly, a study conducted in Indonesia, under the aegis of the United Nations Development Programme (UNDP), highlights the Waqf forest conservation as an innovative instrument to support Indonesia’s commitment to meeting the 2030 Agenda and its Nationally Determined Contribution (NDC) pledge.
Excepting it, we don’t get to witness any scholarly studies or even stray efforts to analyse the productive role played by Waqf properties in achieving the Sustainable Development Goals (SDGs), nationally or beyond. Governments worldwide may consider emulating this exemplar to achieve monetisation of the Waqf properties without compromising sustainability. Given our mammoth target of 50 GW renewable energy by 2030, the dispensations at all levels must explore the possibilities of Waqfs as practical tools in realising the net zero ambitions – nationally and even beyond, by better orienting the legislative, regulatory and policy frameworks.
Land acquisition remains the most daunting challenge in establishing renewable projects. Devising a customised Public Private Partnership (PPP) model with Waqf institutions for housing renewable energy projects can be part of the answer to our ever-increasing green energy demands. This brings us to the much-debated deliberation on the ground-level complexities the Waqf properties face.
Tribunals and Tribulations
One of the paradigm changes proposed by the new law is the realignment of powers and functions of the Waqf Tribunals. Originally and historically, Waqf legislation did not have a Tribunal until 1995. Thanks to the 2013 Amendment, the Waqf Tribunal became a complete dispute resolution code for resolving all conceivable disputes under the Waqf Act. Even the new law of 2024 retains the Tribunals. This, debatably, needs a rethink.
Tribunals are administrative bodies discharging quasi-judicial duties by following a summary procedure, which is contradistinguished from the judicial functions discharged by courts following a detailed adjudication process. The core question is whether we need a Waqf Tribunal to decide the Waqf property disputes when specific and effective legislative and legal frameworks exist.
All land disputes, in the first instance, are invariably adjudicated by Civil Courts. The City Civil Courts established in major Indian cities have unlimited pecuniary jurisdiction. Are civil courts adjudicating all land disputes of all religious institutions and creating a tribunal for a specific religion in ‘island’ mode fair? The 2013 Amendment to the 1995 Act mandated the appointment of an Islamic scholar as a Member of the Waqf Tribunal. Though there is no compulsion that the other two members have to be Muslims, as an unwritten rule, Muslim judicial officers are appointed to the Tribunals across all States. Does it impact judicial independence and dent the confidence of non-Muslim litigants?
Importantly, the Land Grabbing Courts headed by former High Court Judges have been constituted in four states of India (Andhra Pradesh, Assam, Gujarat and Karnataka) and have jurisdictions to adjudicate Waqf land disputes too. The definition of ‘land’ in the Karnataka legislation is inclusive and prominently includes the land belonging to Wakf or the Hindu Religious Institutions and Charitable Endowments. This law is a later Act and has received Presidential Assent. Hence, it directly and completely overrides Waqf legislation and, particularly, the Tribunals therein. So, even before the proposed law amends the Waqf law, a comprehensive adjudication mechanism exists for Waqfs. The only shortcomings and shortcomings of the Karnataka Land Grabbing Prohibition law (not in the law per se but in its implementation) are that it now functions only in the state capital. To begin with, the Executive needs to follow the enabling legal provision and constitute benches in every District or at least in the regional headquarters.
When a comprehensive and special legislation – in the Karnataka Land Grabbing Prohibition Act, 2011 – exists with Special Courts headed by a former High Court Judge – why or whether, in the first place, do we need Waqf Tribunals?
Andhra Pradesh was, in fact, the first State in India to pass legislation prohibiting land grabbing In India. However, it was applied to urban agglomerations and municipalities and had extended restrictions. Recently, Tamil Nadu and Maharashtra volunteered to constitute these Special Courts by passing enabling legislation. The times need other Statforo match states to ter this exemplar. Juxtapose these Special Courts conducting full-fledged trials by a Former High Court Judge of three or four Waqf Tribunals following summary trials manned by Members based on religious scholarship.
The Constitution Bench of the Hon’ble Supreme Court in the case of Union of India v. R Gandhi (2010) 11 SCC 1 has held thus:
“46. Legislature is presumed not to legislate contrary to rule of law and therefore know that where disputes are to be adjudicated by a Judicial Body other than Courts, its standards should approximately be the same as to what is expected of main stream Judiciary. Rule of law can be meaningful only if there is an independent and impartial judiciary to render justice.”
By stretch of the imagination, the Waqf Tribunals are an effective alternative to the mainstream judiciary.
Waqf by User
One of the most controversial aspects of the new law remains the removal of ‘Waqf by User.’ By this amendment, a property cannot claim the Waqf status merely by its nature or longevity of usage. The argument against the amendment is that it disrobes the properties of the Waqf protection and makes them vulnerable to encroachment or revesting.
First, the properties being used as Waqf that are already forbidden in the centralised WAMSI portal are gazetted. Hence, they remain protected. The new law also gave a breathing space for including Waqf properties.
Historically, a property never qualified as Waqf by mere usage. Even the granted lands were historically outside the ambit of Waqf. The foundational tenet of a Waqf is its unconditional bestowal to Almighty Allah. So, the inclusion of every property ‘used’ by Muslims never qualified Waqf property. Unless a Waqf is created doctrinally adhering to the fundamental Islamic tenets, it is untenable to all and every property as Waqf. In a seminal judgement, the Apex Court negatived that all Trusts created for Islamic purposes or Muslims constitute a Wakf. By the same logic, unless a property was unconditionally vested to Almighty Allah, in strict adherence to Islamic doctrinal requirements of Waqf, it cannot be automatically brought within the realm of Waqf legislation.
Collector vs. Survey Commissioner
One other opposition to the proposed law seems to be augmenting the role of the Collector. The new law streamlines the administrative machinery of Waqf by centrally vesting most vital powers onto the Collector. Collector or Deputy Commissioner is referred to in about 14 places in the existing 1995 Act. The further enhancement of her/ his role is only to ensure a single-window solution. When the most vital functions under the Act and analogous legislation already vest with the Collector, vesting functions on the Survey Commissioner is avoidable. Moreover, the power to recover the property transferred in contravention of the Act already vests with the Collector; it is logical that the Collector must be given all related powers.
Subaltern concerns
One novel feature of the new law is that no Government property does not qualify as Waqf property; differently put, Waqfs cannot lay claim on a government property, and the existing claims stand extinguished. Rather than viewing it from the prism of the eminent domain, one needs to analyse it from the viewpoint of the Dalits and subaltern communities, including the poor and landless sections within Muslims. Once land originally owned by the State is declared as Government or acquired by the Government in any manner, all rights are extinguished. More prominently, under various welfare and progressive legislation, the State is dutybound to allocate it to the landless. Thus, the landless have a vested right in the government lands.
Whether in the name of religiosity or otherwise, this foundational constitutional objective cannot be defeated. Creating Waqf or any other transgression in the name of any other religion on government lands is also against the all-religious tenets.
The Government also needs to extend this legislative protection to the unrecorded habitations of the voiceless communities. Presently, the unrecorded habitations of the Tribals, DTNDT communities, and Dalits (in the context of Karnataka – Lambani Tandas, Gollarahatti, Vaddarahatti, Kurubarhatti, Nayakarahatti, Majare Grama, Haadi, Doddi, Palya, Camp, Colony or any other such unrecorded habitations of the subaltern communities) also need to protected under this legislative benevolence.
Exclusivity redefined
Broad basing of the Waqf Boards has invited the expected opposition because involving non-Muslims in Muslim institutions is a transgression of their religious rights. A similar contention was raised in Karnataka on including non-Hindus in Hindu institutions. Two Writ Petitions seeking strict implementation of Section 7 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, thereby, seeking that no person who is not professing Hindu religion be permitted to work in the office of Commissioner appointed under the said Act, were summarily dismissed by the Hon’ble High Court of Karnataka holding that given our syncretic religious traditions, this kind of parochialism must be hated.
Islam today is a global religion which has embraced the syncretic values in a vibrant democracy in India. Hence, it is unreasonable to object to the appointment of Non-Muslims into the Council. Moreover, the Waqf disputes are property disputes involving Muslim and Non-Muslim litigants. Hence, staffing the Councils only with Muslims will seriously prejudice the interests of non-Muslim litigants. Justice should not only be done but also be seen to be done. Hence, the inclusion of a few Non-Muslims Members cannot be seen as arbitrary or impacting the Muslim’s interests.
As per the proposed amendment, the CEO need not be a Muslim. The Government Officers being appointed to this post cannot be segregated as Muslims and Non-Muslims. Hence, the 1995 Act is in serious need of amendment. And the present amendment is in order. The essential function of a CEO is to manage Waqf properties. The core objective of the Waqf Act is the protection of properties; it is unjust to make appointments on communal lines rather than rendering filling to efficiency.
Even while enforcing the Constitutional guarantee of the Scheduled Castes and Scheduled Tribes reservations, the Constitution places a caveat of efficiency as per Article 335. Thus, when the core of the Waqf Act is theis managing and administrating Waqf Properties, communal appointments should be abolished, giving way to efficiency and participative mechanisms.
The recent proposed amendment to the Waqf Act, merits a comprehensive and objective evaluation from a legal angularity, more importantly from the viewpoint of the rights of the Dalits, tribals, landless, poor and subaltern sections within Muslims. Under the present legal framework, there is a reverse burden on these communities to protect their constitutional rights of life and habitation. The Governments at all levels need to keep their interest as foremost priority in devising the new adjudication mechanisms by making the Wakf institutions more participative. Instead of relegating these communities to a handful of Tribunals, it is time for a uniform adjudicatory structure in Civil Courts or Land Grabbing Prohibition Courts to be formalised. In the United States, the courts can adjudicate Waqf property disputes.
The unexplored dimensions of monetisation of Waqf properties by retaining their essential characteristics must be explored, particularly making them effective participants in sustainable development goals. The profits earned by such novel exploration must be utilised for the welfare of the marginalised communities within their fold.
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