Wednesday, July 24, 2024

The Waqf Act, 1995: A Discordance in the Symphony of Bharat’s Secular Orchestra

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The literal meaning of Waqf is detention and in a legal context it is synonymous with the detention of public endowments. In Section 3(r) of The Waqf Act, 1995 “waqf” is defined as the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognizedby Muslim law as pious, religious, or charitable. The property once encroached upon by the waqf board is considered sacramental and under divine authority thus becomes out of the jurisdiction of humankind and consequently gathers the status of a non-transferable property. The power of the waqf board like surveying, and administration, initially, were at the mercy of encroachers under the Waqf Act, of 1954 but this act was amended in the year 1955 to transform its earlier version into comprehensive legislation. The so-called amended comprehensive legislation undoubtedly made administration comparatively seamless but the sad part is, the seamlessness appeared more in the illegal encroachments though now under the sham of the gifted legal authority by the amended Act and under the blessings of their Almighty. The amended act nodded the establishment and constitution of the Central Waqf Council and State Waqf Council. Presently there are thirty state waqf councils in India. The main objective of the Central Waqf Council and the state waqf councils is to advise the Government of India on matters concerning the working of Waqf Boards and the due administration of Waqfs in the country. For smoother functioning, the Central Waqf Council constituted four committees namely, the Monitoring and Advisory Committee, the Planning and Finance Committee, the Waqf Development Committee, and education and Women welfare committee. Unsurprisingly, all the members of these committees of the Central Waqf Council which comes under the aegis of the Ministry of Minority Affairs, Government of India are Muslims, similar is the case with state waqf councils.

Waqf Tribunal & Corrosion of Right to Approach Civil Court

The Waqf Act,1955 dispenses authority to the Waqf Tribunal to work with the potency and powers similar to that of a Civil Court. The decision of a Tribunal shall be final and binding on the parties. A person couldn’t file a similar suit or appeal in any civil court if the case is related to Waqf and its properties. No suit or legal proceedings shall lie under any civil court for a case that has to be determined by a Tribunal. No appeal could be filed against the judgment of the tribunal. The decision of the Waqf tribunal has to be final and binding on the parties. Consequently, authorizing decisions of the Waqf tribunal above the ones of the civil court. The properties thatare held by the Waqf board are bestowed to the almighty, conclusively once a waqf property becomes forever a waqf property.

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Constitutional Remedy stands subjugated under the Waqf Board

In addition to the washing out of the power of civil courts, the fading access to Article 226 in cases related to Waqf, forms another grave aspect of the Waqf Board Act, of 1955. The order of the Wakf Tribunal could not be challenged by way of the writ petition before the High Court under Article 226 of the Constitution of India as only a revision in terms of proviso to sub-section (9) of Section 83 of the Act could be preferred.All matters pertaining to Wakfs have to be first filed before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995, and could not be directly entertained by civil courts or by the high courts. The words “any dispute, question or other matters relating to a Wakf or Wakf property” of the Waqf Board Act, 1955 are words of very wide connotations, thus any dispute, question or other matters whatsoever and ofwhatever nature if relates to Wakf or the property encroached by it, then the case, before all other remedies, has to be tabled before waqf tribunal. This provision of the Waqf Board Act, 1955 was further reaffirmed by the Supreme Court in Punjab Wakf Board vs Sham Singh Harike on 7 February 2019.

Conclusively, on one hand, the high court under Article 226 has a wider scope than Article 32, and on the other one, the power of the high court dissolves or becomes secondary to the Waqf Board Act of 1955.

District Magistrate in Service of Waqf Board & its Order

A District Magistrate is responsible for law and order in the district. He has the authority to head the police and prosecuting agency. As Collector, he is the chief officer of the revenue administration and is responsible for the collection of land revenue and is also the highest revenue judicial authority in the district. The District Magistrate is a premier authority and head of district administration who exercises complete supervision of other government agencies in his district. Even though all departments in the districts have their distinct coordinating officers, still all departments look to the executive head of civil administration who is the District Magistrate for guidance. But the same chief executive authority has to meekly portray compliance to the arbitrary actions of the Waqf Board without any second questioning as according to the provision of the Waqf Board (Amended) Act, 2013, the district magistrate or in his absence an additional district magistrate of a district of the board shall be responsible for the implementation and proper execution of the arbitrary decisions and orders of the Waqf board.

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Judgments that Mitigated the Despotism of Waqf Act

Waqf Board is a State, and comes under the realm of Article 12 of the Constitution

In State of Andhra Pradesh v AP State Waqf Board & Ors, it was held by the division bench comprising of Hemant Gupta & V. Ramasubramanian that the Wakf Board is a statutory authority established under the Act and is a “State” within the meaning of Article 12 of the Constitution. The court said that the State Government is a juristic entity (A juristic person is a legal entity that could possess property in its name, acquirerights, assume obligations and responsibilities, sign contracts and agreements, and can be sued or institute legal proceedings exactly like a natural person.) and has a right to protect its property through the writ court, just as any individual. Thus, the state government like any other individual could invoke the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare a certain property as Wakf property. Through this decision, a judicial check on the activities of the Waqf Board was imposed. Today if the Waqf Board declares a certain property as a property of Waqf then the state government has a legal right as any individual to file a writ petition against Waqf in the High Court.

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The Waqf Act could not Absolve the Right to Constitutional Remedies

In L. Chandra Kumar V. Union of India, the constitution bench of seven judges reaffirmed the decision in KesavanandaBharati, that the jurisdiction of the Supreme Court conferred under Article 32 and of the High Courts under Articles 226 and 227 are a part of the basic structure and cannot be subject to any amendment and alterations. It was held in this judgment that there could not be any constitutionalprohibition against the Tribunals in performing a supplemental role and they will not be considered as the substitutes of the High Courts or the Supreme Courts. This judgment articulately assuaged the despotic powers of Waqf Tribunals as it was held in the judgment that the tribunals are not the substitute but are a supplement to the High Courts & Supreme Court. Thus, Waqf Tribunals which are synonymous in powers with Civil Courts but nonsynonymous in functioning, could not be considered as a final remedy or resort to individuals whose land is encroached upon by the Waqf Board. By L. Chandrakumar v UOI which could also be seen as the re-examination and affirmation of the Judgment of Kesavananda Bharati v. State of Kerela, it is clarified that the powers of judicial review under Article 32 and Article 226 are unapologetically absolute and could not be subjugated by any other act or law.

Conclusion

It is prima facie appreciable that the Supreme Court has taken cognizance of the matter of encroachments by the Waqf Boardthrough its judgments, but the ground image in various parts of India is still crude and threatening. There have been many cases in the past few years regarding the unseizable and insidious encroachments like the encroachments in the Hindu majority village Thiruchenthurai in Tamil Nadu, encroachment of Gurudwara’s 14-marle land in Haryana’s Jathlana village, of 1,500-year-old Sundareswarar Temple,Surat Municipal Corporation headquarters at Muglisara, Shiv Shakti society of Mora, Surat, etc. And how can one forget the Gyanvapi Mosque-Shringar Gauri Case? The question of how such a biased act be enacted in a secular nation, and the justifications and validations given by pseudo-secularists on the same question, are age-old. It’s high time that the government should enact legislation to undo the loss or should straightway strike out the Waqf Board Act to assuage the despotism of waqf board budding in the parts of Bharat before there is another case where the questions are raised on the Bharatvarsha’s historical, religious and heritage sites.

 

 

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