Waqf Act: SC pauses contentious powers, but Centre not out of play

The Supreme Court’s verdict on the petitions seeking a stay on the implementation of the controversial Waqf Amendment Act, passed by Parliament in April this year, has given the petitioners some relief. Yet, at the same time, the judgment also hands the Centre ample scope to keep the cauldron of politics over waqf properties simmering.

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This is not to say that the interim relief granted to petitioners, and the Muslim community at large, by Chief Justice of India BR Gavai and Justice AG Masih through their judgment is insignificant. Though the bench declined the prayer of petitioners for a stay on the implementation of the entire amended Act by reiterating the well-settled legal doctrine of courts always finding a “presumption in favour of constitutionality of an enactment”, the interim stay granted against three crucial provisions of the statute is noteworthy.

Key provisions challenged

There were, broadly speaking, eight provisions of the Act that a bulk of the petitioners had taken the strongest objections to.

These included the scrapping of the previously accepted category of endowment – also among the most widely used – called ‘Waqf By User’, the inclusion of several non-Muslims in the constitution of State Waqf Boards and the Central Waqf Council, the mandatory requirement for registration of waqf properties, and provisions governing who can create waqf, including the absurd requirement for Muslims to demonstrate that they have been “practicing Islam for five years” to be able to create waqf.

Also challenged were provisions of the amended Act that practically granted adjudicatory powers to the Collector or an officer designated by the government to decide title disputes over waqf properties. Other contested provisions include those that seemingly curtailed the practice of Islam in any waqf property declared a protected monument by the government, and those that disallowed the creation of waqf in tribal areas protected under the Constitution’s Fifth or Sixth Schedule.

Partial relief for petitioners

The court has, in its judgment, provided partial relief to petitioners in three matters, albeit each as crucial as the other, while dismissing arguments of arbitrariness made against the other sections of the Amended Act.

Of particular significance for the petitioners is the court’s decision to grant an interim stay on the implementation of Section 3 (r) of the Amended Act, the highly contentious provision that required a person to “demonstrate practice of Islam for at least five years” to create an endowment under the Waqf law.

“We are of the considered view that since no mechanism or procedure has been provided as of now for ascertaining whether a person has been practicing Islam for at least 5 years or not, such a provision cannot be given effect to immediately,” the court held.

Centre’s powers upheld

While the directive does come as a major relief to Muslims, the court has left a window wide open for the Centre to wade in at a later stage and reinstate the provision by “exercising its rule-making power under Section 109 of the Amended Waqf Act” to define parameters for deciding whether a person can be certified as a Muslim practicing the faith for five years.

On the connected issue of whether non-Muslims can create a waqf, the court has upheld the Centre’s arguments that this cannot be countenanced. The Amended Act, unlike the original Waqf Act of 1954 and its subsequently amended versions, had scrapped provisions allowing any individual, irrespective of their faith, to create a waqf. Critics of the new law had alleged this was an arbitrary and unconstitutional move as it impinged on citizens’ fundamental rights to practice any religion as well as their right to property.

The court, however, held that the arguments made by counsel for petitioners on this score were “self-contradictory”. “On one hand, it is the contention of the petitioners that waqf is specific to the Islamic religion. If that be so, then the deletion of the provision which permitted the person not professing Islam to give or donate his property for the purpose of waqf cannot be said to be arbitrary, as even according to the petitioners, waqf is specific to the Islamic religion. In any case, if such a person desires to donate his property, he can do so by giving or donating it to a trust or creating a trust... We, therefore, prima facie do not find the deletion of Section 104 of the Original Waqf Act to be arbitrary,” the court ruled.

Curtailing executive overreach

As contentious as the Amended Act’s yardsticks to determine an individual’s eligibility for creating a waqf were the new law’s provisions vesting expansive powers in District Collectors and other designated government officers to adjudicate on disputes arising over waqf property. On this score, the court has truly granted substantive relief to the petitioners.

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The Amended Act had allowed Collectors and other designated officers to nullify a waqf claim the moment an endowed property fell into a title dispute with any government body. To put it succinctly, the Act turned on its head a most fundamental tenet of natural justice - nemo judex in causa sua (no one is a judge in his own cause) – as an officer, acting on behalf of the government, was being allowed to adjudicate a title suit in favour of the government.

The court has stayed this provision of the Amended Act. “A provision, by way of which even before an inquiry is conducted by the designated officer as to whether any property is government property or not and even before the designated officer submits his report to the state government, providing that such a property cannot be treated as waqf property in the interregnum, is, at least, prima facie, arbitrary. If a property is already identified as a waqf property or is declared as a waqf property, then without determination of the question as to whether such a property is a government property or not and treating the said property not as a waqf property, in our prima facie view, is arbitrary,” the court ruled.

Tribunal role affirmed

The verdict adds further, “The provision in sub-section (3) of Section 3C of the Amended Waqf Act which provides that after the designated officer, on an inquiry in terms of sub-section (2) of Section 3C of the Amended Waqf Act, determines the property to be government property, necessary corrections in revenue records be made and a report be submitted in that regard to the state government and the provision in sub-section (4) of Section 3C of the Amended Waqf Act mandating the state government, on receipt of the report of the designated officer, to direct the Board to make appropriate correction in the records is, prima facie, arbitrary.”

Stating that the Amended Act’s provision empowering a revenue officer to determine the title of a property violates the “principle of separation of powers”, the bench held, “provision which permits the necessary corrections to be made in the revenue records after conclusion of the inquiry and the provision enabling the state government to direct the Board to make appropriate corrections in the revenue records on receipt of the report are, prima facie, arbitrary and liable to be stayed”.

Here, however, in order to “balance the equities and protect valuable government properties”, the court has also directed Mutawallis (custodians) of waqf to “not create any third-party rights in respect of such (disputed) properties” pending final adjudication of title by the relevant tribunal.

Protected sites off-limits

The court has, however, rejected arguments of petitioners against Section 3 (D) of the Amended Act, which declares that protected monuments or protected areas notified by the government cannot be claimed as a waqf. Section 3 (E) of the Act, which prohibits the creation of a waqf in tribal areas listed under Schedule 5 and Schedule 6 of the Constitution, has also been upheld by the court.

The court’s decision to uphold both these sections is a significant setback for the petitioners, the full import of which may not be immediately visible but is bound to come back and haunt the judiciary. The court’s grounds for upholding Section 3(D) are the assumption that the Ancient Monuments and Archaeological Sites and Remains Act, 1958, “permits the citizens to continue with their customary religious practices even if such an area is a protected monument”. While this may be true on paper, it is hardly so in practice. Repeated instances of communal clashes and the Hindutva brigade’s recurring campaigns to stop Muslims, often violently, from offering prayers at various historical mosques under the control of waqf boards but also declared as protected monuments, lay bare the fallacy of the court’s assertion.

Tribal rights overlooked

Similarly, while it is of essential importance to protect the rights of tribals over their property, particularly in Schedule 5 and Schedule 6 areas, the court seems to have ignored the fact that large sections of tribal populations in the country, many residing in such notified areas, identify themselves as Muslims by faith. A case in point is Lakshadweep MP Hamdulla Sayeed, who had also filed a petition in the Supreme Court urging that his religious right to create a waqf as a Muslim should not be taken away due to his tribal ethnicity. The court could have found a way to, in its own words, “balance the equities,” but did not, leaving scope for government interference.

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Finally, the court has granted relief, but again only partially, to the petitioners on their challenge against provisions of the Amended Act that allow nomination of non-Muslims to Waqf Boards in the states and the Waqf Council at the Centre. The court has declared that the 22-member Central Waqf Council “shall not consist of more than 4 non-Muslim members,” while the number of non-Muslims in the 11-member State Waqf Boards should not exceed three members. However, as far as the appointment of the CEO of the State Waqf Board is concerned, the court has merely stated that “as far as possible an effort should be made to appoint” a Muslim CEO of the Board. In effect, the court has left enough room for the government to claim, if it so wants, that no such officer was available and, thus, the government was compelled to appoint a non-Muslim as the CEO of the Board.