Honorable Chairman
Jt. Parliamentary Committee (Wakf Bill)
Indian Parliament
I had responded to your call for public consultations on the proposed amendment to The Waqf Act 1995 as amended in 2013. Upon not receiving even a system-generated acknowledgement, I am writing an open letter and sharing with honorable Members of Lok Sabha and Rajya Sabha, at least with those whose email addresses work (many don't in digital India).
I and my family had a personal experience of dealing with the impact of Waqf Act in Delhi. A property purchased by us and registered with the Registrar many years ago was suddenly claimed by the Delhi Waqf Board when we put it up for sale. We had a clear title but found out that there had been a case a few decades ago before Indian independence, and the Court had decided that it was not a Waqf property. Nevertheless, Waqf still staked its claim, and we had to not only bribe the Waqf officials to avoid extended litigation but also lost almost 20% of the market value of the property. The purpose of this input to your notice of public consultation is not to raise a personal case but to contextualize my comments that follow.
The Waqf Act 1995/2013 (Act) places it above the Indian Constitution and creates extra-constitutional authority. The “Act” over-rides the powers of the Courts and constitutionally created structures of public governance and takes away the fundamental rights of property of citizens. An Act that should confine itself to laying down the laws for management of an endowment by Muslims for the benefit of their communities has been extended to create a right for Muslim community to lay its claim on every land, property, assets, whether private or public, without having to provide any evidence of ownership or title to the concerned property. Let me now delve into my specific comments.
1. “Waqf” as defined under section 3(r) does not require the “person” creating a waqf to be the owner of, and have a clear title to, the property that is being dedicated to the Waqf. All that it requires is the intent of the person and the purpose of the dedication. It defies commonsense but a simple reading of the law allows me, a non-Muslim, to create a waqf on the building of the Parliament. This intent of the law is made amply clear by Section 3 (r) (i)) that allows a “user” of a property to create a waqf on that property which shall not cease even after the “user” has ceased to be a user. If you are allotted a room in the Parliament building and are a user for the tenure of your membership of Parliament, you can create a waqf on that room which shall continue even after you cease to be a Member of Parliament. A “person” can create Waqf even on “Shamlat Patti” or “Shamlat Deh” (i.e. community property). Obviously, the community land or property is not owned by any “Person” but he/she can create a waqf on that property which reconfirms the intent of the law that “ownership and title” to the property is irrelevant. Extending that logic, any person can create a waqf on the entire country of India, its land, properties, and assets. To frame ridiculous laws is the privilege of the legislature but it has no right to take away my property or allow anyone to take away my property infringing my fundamental rights. Your proposed amendment does not even mention any problems with creating Waqf on Shamlat Patti.
2. The argument presented in paragraph 1 may seem outlandish, but this intent runs throughout the Waqf Act 2013. Section 40 on decision whether or not a property is a Waqf says “The Board (comprised entirely of Muslim members) may itself collect information regarding any property which it has the reason to believe to be Waqf, decide whether or not it is Waqf and its decision shall be final” Thus the Waqf Board only needs “reason to believe” (Section 91 (2)) and not documents of ownership or evidence of the title. Powers of the Board extend even to properties of registered Trusts and Societies (Section 40 (3)). The appeal against the decision of the Board lies only with the Tribunal (Section 6) and not to the Courts. The decision of the Tribunal shall be final (Section 6 (5)); the time period for an appeal to the Tribunal is limited to one year from the date of publication of the list of a Waqf property. The powers of the Court to stay the proceedings of the Waqf Tribunal are taken away under section 7 (2). Thus, Waqf Act takes away the powers of the Indian Courts.
3. One more confirmation of the devious intent of the Waqf Act is evidenced by Section 4 that authorizes the State Government to appoint Survey Commissioner, with the powers of a Civil Court, to summon documents of any property, not just of the Waqf properties since it has to determine whether or not a property is a Waqf its jurisdiction extends to all properties, private or public, within its territorial boundaries. Ironically, the Survey Commissioner who may have declared my property as Waqf, and whose decision causes the dispute over my property, cannot be made a party to the suit (even though cause of the dispute arises from his decision) (Section 6 (3) and Section 7 (3)).
4. Not only the powers of the Courts are taken away by Waqf Act, the Waqf institutions are empowered to issue directions for recovery of any dues as “land revenue” through the Collector. Thus, a litigant in a property dispute has been given the authority to issue directions to the District Collector to collect its dues as land revenue, thereby creating an authority over and above the institutions of governance of the country. A District Collector can even be fined by the Tribunal (created for management of charitable assets of Muslims) if she/he fails to comply with the orders of the Muslim’s Tribunal.
5. Not only the Waqf Boards (including its Chief Executive Officer) shall comprise only of Muslims, but the Waqf Council shall also comprise only of Muslims. Waqf Boards are not created as Trusts or Societies for management of their religious endowments but are created as Statutory Boards with enormous powers open to abuse and extortion from non-Muslims by threatening to declare any property as Waqf and forcing the property owner to fight unending and costly battles in front of Tribunals created to protect Waqf properties of Muslims and not in front of the Courts of India created under its constitution.
6. Waqf, as property owner, in case of a disputed sale of property, has the authority to punish the purchaser to a two-year rigorous imprisonment (Section 52 A) and can re-take the property without any compensation that is even violative of the Indian Constitution. If a Waqf Board defrauds a purchaser of a Waqf property (the onus of verifying the beneficial ownership, if any, of the Waqf is on the purchaser) the purchaser cannot even file a suit in the Court of Law (Section 52 A (3)). Courts cannot take cognizance of the crime and are subordinated to the Waqf Boards. Court’s jurisdiction is also curtailed under Section 61 (3) “no court shall take cognizance of an offence punishable under this Act except on complaint of Waqf Board”.
7. A Chief Executive Officer of the Board, in case of encroachment (that includes expired tenancy or lease even in favor of a public authority), has the powers, after referring the matter to the Tribunal, to evict the encroacher. Simply put, if there is a dispute between the landlord and the tenant on expiry of lease or tenancy, the landlord has the powers to use force to evict the tenant. This power is not given to any citizen except the Waqf Board (Section 54), confirming that the Waqf Act has created a parallel system of governance outside the framework of Indian Constitution, Legislature, Judiciary, and Executive Authority. All these are subordinated to the Waqf Boards and Tribunals and the Tribunal can issue directions to the Executive Magistrate to get the property vacated, including by use of police force. (Section 55).
8. A Tribunal (constituted for management of charitable properties of Muslims) has been given authority to issue directions to a Civil Court to execute the orders of the Tribunal thereby making the court subordinate to the Tribunal (Section 83 (8)).
9. The decision of the Tribunal is final, and High Courts can only “examine” the records of decision of Tribunal (Section 83 (9)) but not adjudicate. Thus, even the High Courts are subordinated to the Waqf Tribunal. Section 85 stipulates “No suite or other legal proceedings shall lie in any civil court, revenue court, and any other authority in respect of any dispute, question or other matter relating to any Waqf, Waqf property..….. required by or under this Act to be determined by a Tribunal.”. Section 88 bars the jurisdiction of any court to adjudicate the notifications of State/Central Government under Waqf Act.
10. Section 93 takes away the powers of the Courts to accept a compromise in a dispute, without the sanction of the Board. Thus, a Court needs the sanction of the Waqf Board to decide its judgement in a property dispute.
11. Section 100 further reinforces the intent to place the Waqf Boards and Tribunals above the Indian legislature, judiciary and the executive by stating that “no suit or other legal proceedings shall lie against the Board or Chief Executive Officer or Survey Commissioner, or any other person appointed under this Act (all of them are required by law to be only Muslims) for anything done or intended to be done in good faith”. The moot question is “Who is to decide the good faith or malafide intent”? Is it self-regulation by very institutions whose good faith or intent is under question or some other independent authority?
12. Section 107 removes application of law of limitation on the rights of the Waqf Boards to claim any property but places severely short limitation periods of one year on claims or rights of others to contest property disputes against Waqf. Even a Sharia Law would be less harsh and unjust. It is a travesty that a democratic India can so brazenly trample upon the rights of its non-Muslim citizens.
Such a draconian, discriminatory, and unjust law is a powderkeg waiting to explode as you would have seen from recent claims of Waqf Boards on fourteen century old temples and entire villages in Tamil Nadu, Karnataka, and Kerala.
Your proposed amendments don’t address some of the fundamental problems imposed upon non-Muslims by the existing Waqf Act. I urge the JPC to repeal the Waqf Act 1995, as amended by Act 37 of September 23, 2013. In its place a Law should be brought only for management of the properties endowed to the Waqf Boards by Muslims after providing the evidence of beneficial ownership and clear title to the properties dedicated. Similar Laws should be enacted for endowments of other religions and faith-based organizations to remove any asymmetry in treatment of religions.
With best regards
Mohinder Gulati
former Chief Operating Officer, United Nations Sustainable Energy for All, and
Advisor (Retired) World Bank.
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