(Muslim Mirror) There is widespread opposition to the proposed Wakf Amendment Bill 2024 among the Muslims, who perceive the amendments as a ploy by the government to usurp or devour Wakf properties and destroy the institution of Waqfs in the country. The moot question is why the government led by BJP, brought this Bill in the face of so many odds. There appears to be three basic reasons viz. test the resilience of the coalition partners; bring the administration of Waqf into the hands of the Central government to the near exclusion of the State governments and finally and most importantly to legitimise the false narratives of BJP hardliners on the Waqf matters.
In a democracy, coalition partners are normally highly conscious of the sensitivities and vulnerabilities of each other and avoid every occasion to step on the toes of the other. That is why, to sail smoothly, the partners decide upon a common minimum programme limiting to only the mutually acceptable agendas, and shelving all controversial agendas which might have been, otherwise, either’s priorities.
Tabling of Waqf Amendment Bill 2024 was in that sense, a departure from the normal and a little intriguing. The dominant partner in the government that is BJP knew that it was going to be vehemently opposed by Muslims for its brazen anti-Muslim agenda, and specifically the two important coalition partners that is JDU in Bihar and TDP in Andhra Pradesh, who have substantial goodwill among the Muslims, will be uncomfortable with this vehement opposition of Muslims.
Still the government chose to bring this Bill as its first legislative agenda in the first session, could not be coincidental. In my opinion, and it should be obvious to anyone who chooses to analyse, this was basically a test exercise, to test the reaction of particularly these two parties and how far they could go in restraining the government.
Though both these parties were not very vocal in parliament in opposing the Bill, may be circumscribed by coalition dharma, but the very fact that the Bill was sent to a Joint Parliamentary Committee (JPC), could not have been without the covert pressure of these and other partners. If JPC over rules the Muslim objections and re-sends the Bill to the Parliament with some minor cosmetic modifications, it will be the real test for these coalition partners.
Anti Muslim agenda of the bill was obvious. But what was not so obvious, was the bringing of the Waqf administration largely from State governments to Central government. That should have been an anathema to every state government. But unfortunately, this aspect has gone almost unnoticed. Up till now the Waqfs in the states and even Hindu Endowments have been largely monitored and managed by the State governments, but now in case of Waqfs, the proposed amendments provide for among others, framing of rules, management of records and datas and even prescribing of ordinary forms for registration and submission of reports etc, by the Central government, to near total exclusion of State governments. It is interesting to note that, in contrast in Telangana, the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987, and that must be true for all the State Acts, the word ‘Central Government’ is not used even once.
Political angle apart, it would be interesting to analyse as to what the BJP led government wants to achieve with this controversial Bill which is prima facie unreasonable, unsecular, unconstitutional and out and out discriminatory against Muslims.
On deeper analysis what stares brazenly out, is that barring some minor amendments which are meant to give the proposed Bill a semblance of reasonability, the thrust portions of the Bill are to cater and submit to the false narratives created by and perpetuated in a section of population.
Let us deal with some of the common false narratives and how they are addressed in the proposed bill
Firstly, it has been propagated since long and consequently inculcated in the minds of a large section of the population that the Waqf Boards all over the country have usurped large extent of government lands and declared them Waqf.
As a corollary to it, another false narrative is created that wakf board holds third largest land bank in India. Even senior level executives of the Government are party to this narrative. This has generated jealousy and hatred against Waqf.
But the claim is misleading, far away from truth and patently malafide. Lack of specific data in this regard is helping the spread of this narrative. The fact is that according to the perfunctory data available on the issue based on Sachar Committee estimation, the total area under Wakf properties all over India is about 6 lakh acres (p.219- No source is given for the claim). Now contrast this with Hindu endowments land; Tamilnadu Hindu endowments hold approximately 4,78,000 acres and Andhra Pradesh Hindu endowments account for approximately 4,68,000 aces of land. These two states alone hold more than 9,40,000 acres of land which is more than Waqf land in the whole country. What will be the extent of total Hindu Endowment land in the whole country and how it will compare to Waqf land is obvious.
The above narrative is otherwise also ludicrous. The registration of a land as Waqf is not a concealed or secretive process. It is prescribed in Waqf Act. A Waqf can be made only by the owner of his property who has to submit his title documents to the wakf board, and registration can be done after giving a paper notification calling for objections from the general public. It does not end there. Unlike Hindu endowments, it is only in case of Wakfs that there is second level of scrutiny by the government who appoints Survey Commissioner who inspects the lands and confirms its Waqf nature after local enquiry and then the same is notified by the Government in State Gazette. Thereafter, anybody could challenge the notification in Wakf Tribunal within a period of one year and then only the Wakf becomes final. Contrast this with registration of Hindu Endowment, where under section 43(5) of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987, Assistant Commissioner, Endowments csould register any endowment on an application and after enquiry as he deems fit. And thus there is no question of arbitrarily notifying government land as wakf land.
In order to yield to the false narrative, the proposed amendment provides for ‘all intruding’ role to the District Collector in Waqf administration including powers to reopen old wakfs, to determine whether the land is government land and also that no new registration of wakf can be done without the approval of the Collector. Not surprisingly, Collector has no role in administration of Hindu endowments.
Second misconception is about the role of Survey Commissioner; objection is that he is paid by the state government to do a Survey of Waqf properties; whereas no such facility or luxury of Survey Commissioner is available to the Hindu endowments’ properties, and also that the appointment of Survey Commissioner violated Article 27 of the Constitution which in effect says that public funds should not be used for religious purposes.
This narrative is also misleading. We must understand that appointment of Survey Commissioner is no favour to the Muslims or the Waqf. In fact, it is one extra level of scrutiny. Muslim Waqfs are subjected to two levels of scrutiny and now after the proposed amendments, will be subjected to three levels of scrutiny.
(i) at the time of registration when the wakf board gives a paper notification and calls for objection.
(ii) when the survey commissioner goes to the site and does public enquiry and calls for objection.
(iii) and what is now proposed, that for mutation of the name of the Waqf institution in the revenue records, again collector will call for objections and then decide the issue of mutation.
Whereas for Hindu Endowments there is no second or third level of enquiry and calling of objections, and the property becomes endowment on an application by the orders of the Assistant Commissioner of Endowments.
Thus, public funds are not being spent on religious work but rather to subject Waqf claims to one more level of scrutiny.
However, to cater to the above narrative, the proposed amendments do away with the post of Survey Commissioner and give this role to the collector. There can be no objection to do away with the post of survey commissioner but why retain the second level of scrutiny in form of collector? Why not do away the survey and leave the wakf Board with the powers to register wakf after following the procedure under the Act as is being done by Asstt Commissioners in case of Hindu Endowments?
The third narrative is about the Waqf Tribunal which is constituted under section 85 of Wakf Act 1995. It is lamented that for Hindus there is no such Tribunal. There is also a general perception that Tribunals are partisan in favour of Waqf Boards and are basically meant to protect Wakf Board interests.
This is based on ignorance and obstinacy. Firstly, Waqf Tribunals are regular civil courts with a serving District judge as presiding officer, who adjudicates on waqf disputes, following the same procedure as in the civil courts. So, the allegations of partisanship can be as true or false as against any judge of the civil court.
And fortunately or unfortunately for the spreaders of this canard, there is also a Hindu Endowments Tribunal, constituted, in case of Telangana, under section 162 of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987 with similar composition and powers.
However, in order to submit to the above narrative, the proposed amendments try to reduce the efficacy of the Waqf Tribunal by removing the finality of the orders of the Waqf Tribunal in most instances, whereas the orders of Hindu Endowments Tribunal continue to remain final in all endowment disputes.
Fourthly, It is also alleged by the so called detractors of Waqf Tribunal that its constitution is not legal or constitutional as it is not constituted under Article 323(a) and (b) of the Constitution of India.
This is again based on ignorance. Article 323(a) mandates only constitution of administrative Tribunals for service matters.
Whereas the other tribunals are constituted under the legislative powers of the Union and the States. For example, income tax appellate tribunal has been constituted by section 252 of Income Tax Act 1961. Similarly, Hindu Endowments Tribunal in Telangana is constituted under section 162 of Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987. Similarly, Waqf tribunal is constituted under section 83 of the Waqf act 1995. Thus, there is no illegality or legal infirmity or undue favour, in the constitution of the wakf tribunal.
Fifth narrative is that in a Waqf Tribunal, a member is appointed who has knowledge of Islam whereas in Hindu Endowment matters, no Hindu having Knowledge of Hindu shastras is appointed
This is again not correct and based on mis-interpretation. Section 162(4) of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987 provides:
“The Chairman shall be a person who is or has been a judicial officer not below the rank of a District Judge and a member shall be a person, who holds or has held a post not below the rank of Additional Commissioner of Endowments”
As per the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987, an Additional Commissioner must necessarily be a Hindu. Thus, Endowments Tribunal necessarily has a Hindu member.
However, to assuage the feelings of the above section, the proposed amendments seek to change the composition of Waqf Tribunal as follows:
“(4) Every Tribunal shall consist of two members—
(a) one person, who is or has been a District Judge, who shall be the Chairman; and
(b) one person, who is or has been an officer equivalent in the rank of Joint Secretary to the State Government—member:
So, contrary to the objection above, now the Hindu Tribunal necessarily has a Hindu member, but the Waqf Tribunal need not have a member conversant with Muslim law
The Sixth narrative, is that a Waqf employee is a Public Servant whereas no Hindu Shankracharya is treated as Public Servant
This is a simple case of misleading comparison and distortion of facts. Hindu Shankaracharya is not an endowment employee like a Muslim alim or Imam is a not a Waqf employee and both don’t have status and protection of a public servant.
Section 101(2) of Wakf Act provides that Every mutawalli of a waqf, every member of managing committee, whether constituted by the Board or under any deed of waqf, every Executive Officer and every person holding any office in a waqf shall also be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860). –
Similarly Section 157 of of Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987. provides that “ The trustee or any member of the Board of Trustees or Chairman, the Executive Officer or any office holder or servant of a charitable or religious institution or endowment, shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.”
So both the managers of endowment and Waqf are equally protected as public servant.
Seventhly, it is argued by a particular section of society that Waqf properties are protected from Limitation Act whereas Hindu Endowment properties are covered by Limitation Act.
This is atrociously dishonest.
Section 109 of Tamil Nadu Hindu Religious and Charitable Endowments act, 1959 in this regard reads like this:
“ Central Act 36 of 1963 not to apply for recovery of properties of religious institution.—Nothing contained in the Limitation Act, 1963 (Central Act 36 of 1963) shall apply to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property.”
Section 107 of Wakf Act 1995 reads like this:
“Act 36 of 1963 not to apply for recovery of 1[waqf] properties.—Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any 1 [waqf] or for possession of any interest in such property.”
Similarly Section 143 of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987 Act provides:
“Nothing in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any charitable or religious institution or endowment which had not vested in such person or his predecessor in title before”
It is unfortunate, inspite of the narrative being palpably false, in order to appease the above narrative, the proposed amendments propose to delete section 106 of Wakfs Act that is withdrawing protection of Waqf properties from limitation act, closing its eyes to continuing similar provision in Hindu Endowments Act.
Eighth, it is alleged that Waqf by User under Section 3 (r) of Wakf Act 1995 is a way of encroaching properties.
This is also not based on truth and is the result of not understanding the interaction of Waqf with Transfer of Property Act.
Waqf by user is a protection given to wakfs which were created in antiquity and which do not have deeds or records of Wakfs and it has a legal basis for that. Oral gift or Hiba is permissible as per Muslim Personal Law. Section 123 of Transfer of property Act requires all the gifts of immovable property to be in writing but section 129 of the TP Act exempts gift by Muslims from the above requirement of being in writing. Waqfs are basically in the nature of transfer or gift of one’s personal property to Allah, almighty. Many Waqf were made orally and only evidence of such gift is by user that is the property was used as such. In fact user is only an evidence of making of oral Waqf and therefore wakf by user is a legally perfect concept and construction. ‘Apparent easement’ under Indian Easements Act 1882 are similar example of recognition of user status.
However, without any recourse to logic or appreciation of other legal provisions, rather in order to legitimise the false narration, the proposed amendment seeks to abolish Waqf by user.
Ninth, it is alleged and widely perceived that by virtue of Section 108 of Waqf Act 1995, Evacuee properties are made Wakf.
This perception has been created and inculcated because of reading of Section 108 in isolation without understanding its back ground and without knowing its relationship with Section 11 of Administration of Evacuee Property Act 1950.
In fact, this section 108 of Waqf Act is to facilitate or functionalize Section 11 of the Administration of Evacuee Property Act.
Let us see what the Section 108 reads like:
“108. Special provision as to evacuee 1[waqf] properties.—The provisions of this Act shall apply, and shall be deemed always to have applied, in relation to any evacuee property within the meaning of clause (f) of section 2 of the Administration of Evacuee Property Act, 1950 (31 of 1950) which immediately before it became such evacuee property within the said meaning was property comprised in any 1[waqf] and, in particular any entrustment (whether by transfer of any documents or in any other manner and whether generally or for specified purpose) of any such property to a Board made before the commencement of this Act in pursuance of the instructions of the Custodian under the Administration of Evacuee Property Act, 1950 shall have, and shall be deemed always to have had, notwithstanding anything contained in any other provision of this Act, effect as if such entrustment had operated to—
(a) vest such property in such Board in the same manner and with the same effect as in a trustee of such property for the purposes of sub-section(1) ofsection11 of the Administration of Evacuee of Property Act, 1950 (31 of 1950), with effect from the date of such entrustment, and
(b) authorise such Board to assume direct management of the 1[waqf] concerned for so long as it might deem necessary.” (emphasis provided)
Which in effect means that any property which was already a wakf and included in the list of Evacuee property by custodian shall be reverted to the wakf Board. There is no legal fallacy or infirmity or favour in this provision.
Now let us understand its background. Prof Ahmedullah Khan in his book ‘the law of wakf in India’ writes: “ The problem of evacuee’s wakf property owes its origin to the circumstances created immediately after the partition of the country in August 1947 when hundreds of thousands of people migrated from India to Pakistan leaving behind them enormous properties both movable and immovable, some of them being wakf properties. Mutawallis of such wakf properties had also migrated and there was no proper record or information regarding such properties. Since the evacuees could not make any arrangements for the protection of their properties behind them, many of such properties were taken over by the unauthorised occupants and this uncertain situation necessitated passing of the Administration of Evacuee Property Act. 1950 and Section 11 of this Act contained special provision with respect to evacuee properties. According to this section, where any evacuee property which vested in the custodian was the trust property for a public purpose of a religious or charitable nature, Central Government could appoint a new trustee, by general or special order, in place of evacuee trustee. It further provided that such evacuee property shall remain vested in custodian only till such time as the new trustees were so appointed.” (page 231 5th Edition)
Thus section 108 of Waqf Act 1995 which the proposed amendment now seeks to delete was only to functionalise and facilitate section 11 of the Administration of Evacuee Property Act 1950, vesting the property in Waqf Board instead of appointing a new Mutawalli in every case.
Thus no evacuee property was made wakf; they were already Waqf from before partition and were under the temporary charge of custodian under section 11 of Administration of Evacuee Property Act 1950 and finally they were restored to the wakf Board.
Now, the proposed amendments, without going into the background and it’s organic relationship with Administration of Property Act, in order to legitimise the false narration, provide for deleting sec 108 of Wakf Act 1995
Tenthly, It is alleged that by virtue of section 108A, Waqf Act 1995 has been given over-riding effects on all other Acts which is an appeasement to Muslims.
Section 108A of Wakf ACT 1995 reads :
“ 108A. Act to have overriding effect.—The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
It is general principle of jurisprudence that special laws prevail over general laws.
Supreme Court in COMMERCIAL TAX OFFICER, RAJASTHAN v. M/S BINANI CEMENT LTD. & ANR. (Civil Appeal No. 336 of 2003) FEBRUARY 19, 2014, reiterated this principle by saying that:
“ 2.2. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. [Para 29]”
Since Waqf Act is a special law dealing with wakf matters, it was rightly given over-riding effect. This effect is only when any other Act operates in the same field. That is if there is any provision in any other Act relating to Waqf matters which is in conflict with some provision in Wakf Act, the provision in Waqf Act shall prevail. This provision of over-riding effect of special law over the general laws, not only helps in reducing litigation but also helps in harmonious construction.
However, the proposed amendments, without going into the logic and jurisprudence, just to satisfy the objectors, seeks to delete this provision.
Thus, if we go into the false narratives created regarding Waqf and Waqf Act 1995 on one hand and the proposed amendments on the other, the relationship between the two is so clear that there is no escape from coming to the conclusion that the proposed amendments have been brought only to legitimise the false narratives.
Source:link https://muslimmirror.com/waqf-amendment-bill-2024-pandering-to-false-narratives/
