Syed Akmal Razvi | Clarion India
THE foundations of India were designed to make the country a stable democracy. In its simplest form, democracy is a system where the people have the power to elect their leaders and have a say in decision-making. Stability of democracy simply means that the system can endure over time without collapsing into chaos or authoritarianism.
A stable democratic India, therefore, needs to adhere to the basic principles that govern a democracy.
1) Rule of Law
Everyone, including the government, is required to follow the law to ensure that there is order.
2) Adherence to the constitutional principles
The Constitution establishes the principles of governance and the rights of citizens with special protection for freedoms and the weak.
3) Civil liberties and human rights must be protected. Freedom of speech, freedom to assemble peacefully, allowing people to express dissent and holding the government accountable.
4) Informed and engaged citizenry
An informed and engaged citizenry which has access to information can make informed decisions and participate effectively in democracy.
5) Protection of minority rights
In a democracy, protecting minority groups from being marginalised is crucial. Otherwise, persistent inequality and discrimination can lead to conflict and instability. A society that is divided along ethnic, religious, or class lines struggles to maintain a stable democracy. Policies that promote inclusion and reduce inequalities guarantee a stable democracy.
The protest against the Waqf Amendment Act is crucial. The Act strikes at the very root of a stable democratic India.
The amendments are primarily aimed at perpetuating majoritarianism, blatant discrimination, seizing Waqf lands illegally and interfering with the right of the minorities to manage their institutions in gross violation of the constitutional guarantees of equality, non-discrimination, rights of minorities and federalism.
Majoritarianism
Buddha was enlightened in Bodh Gaya and Bodh Gaya is a Buddhist religious institution. In 1590 Mahant Ghamandi Giri, a Saivite, established a mutt within the temple complex. The Bodh Gaya Temple Act 1949 was brought into force for the better management of the Bodh Gaya temple and the properties appertaining thereto.
The Act provides that the Mahanth, i.e., the presiding priest of the Saivite Monastery at Bodh Gaya, along with a committee consisting of a chairman and eight members nominated by the State — all of whom shall be Indians and of whom four shall be Buddhists and four shall be Hindus, including the Mahanth.
The district magistrate of Gaya shall be the ex-officio chairman of the committee: Provided that the state government shall nominate a Hindu as chairman of the committee for the period during which the district magistrate of Gaya is non-Hindu.
The Buddhists have been protesting the takeover of the temple and approached the Supreme Court in 2012. The matter is still pending there even after 13 years.
Similarly, the government of Punjab tried to interfere in the Shiromani Gurdwara Parbandhak Committee Act (SGPCA) which is governed by the Sikh Gurudwara Act 1925. The Sikh community is steadfastly resisting this interference.
Article 26 of the Constitution reads:
Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right —
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with the law.
The right to establish and maintain religious institutions is given to all. In the case of TMA Pai Foundation vs. The State of Karnataka, the Supreme Court held that Article 26 gives the right to majority religious denominations, as well as to minority religious denominations, to exercise the rights contained therein. (Para 84)
Discrimination
Section 3 of the Uttar Pradesh Sri Kashi Vishwanath Temple Act provides that no person shall, unless he is a Hindu by religion, be eligible for being or continuing as a member of the board or executive committee or as chief executive officer or as an employee of the temple. Therefore, not only the executive members but also no employee can be a non-Hindu
The Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 provides under Section 5 that the administration, management and governance of Shri Mata Vaishno Devi Shrine, and the Shrine Fund shall vest in a board comprising a chairman, the Lieutenant Governor, and not more than ten members and Section 8 says all of them need to be Hindu.
However, amendments to the Waqf Act provide that the Waqf Board will have two non-Muslims which is discriminatory and the Supreme Court rightly asked the government if they would allow Muslims on the board of the temples and other non-Muslim institutions.
Thus, amendments to the Waqf Act, especially the provisions of Section 9 which provides for the inclusion of non-Muslims in the management of the waqfs when almost all the Hindu temple and endowments acts, provide for the exclusion of all non-Hindus strikes at the soul of Article 14 guaranteeing freedom against discrimination and Article 26 ensuring freedom to establish and manage religious institutions as provided in the Constitution.
Right to Life and Property
The amendment prescribing that a person who has become a Muslim cannot make a waqf unless he has been practising the faith for five years is a serious violation of the Right to Life and Property; there can be no law prohibiting a person from dealing with his property as he deems fit. In addition, the provision of practising Islam for five years is prone to misuse. It is impossible to prove that a person has been practicing Islam for five years. There is no such condition in other endowment Acts.
Seizing Waqf Properties
Waqf by user where property papers are not available because of the waqfs being very old, many of the properties, such as Khabrastan, Idgah, Maqbira, Dargah are all waqf by user from time immemorial. This concept was upheld by the Supreme Court in the Ayodhya case (Para 733).
There are several instances of people setting up mosques on their private properties and then dedicating them to the community without anything in writing and the mosques become waqf by user. Thus, the repeal of Waqf by user provision in the Act is grossly unfair.
This is also discriminatory. Section 2(5) of the Hindu Religious Charitable and Endowment Act, 1997 of Karnataka provides for endowment by user, which is reproduced below:
Section 2(5) in the Hindu Religious Institutions and Charitable Endowments Act, 1997
(5) “Charitable Endowment” means the property belonging to or given or endowed for any charitable purpose and includes the charitable institution.
Explanation: Any property which belonged to, or was given or endowed for the support or maintenance of a charitable institution or which was given, endowed or used as of right for any charitable purpose shall be deemed to be a charitable endowment within the meaning of this definition notwithstanding that before or after the commencement of this Act the charitable institution has ceased to exist or the property has ceased to be so used for any charitable purpose or the objects of the endowment have ceased to be performed;
Removal of Application of the Limitation Act
Section 107 of the Waqf Act 1995, which provided for the non-application of the Limitation Act, has been removed by the new amendment. However, the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 provides that nothing contained in the Limitation Act, 1963 (Central Act 116, 36 of 1963) shall apply to any suit for possession of immovable property belonging to a Hindu temple or institution.
Canard that Waqf Boards Have Arbitrary Powers to Declare Any Property as Waqf
A major propaganda is that the Waqf Boards have extensive powers and can declare any property as waqf. Section 40 of the Waqf Act 2013 is reproduced below.
Decision if a property is Waqf:
(1) The Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf, it may, after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.
Under Section 83 of the unamended Act, the state government constitutes tribunals for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act
The tribunal shall consist of:
(a) One person, who shall be a member of the State Judicial Service holding a rank not below that of a District, Sessions or Civil Judge, Class I, who shall be the chairman;
(b) One person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, a member;
(c) One person knowing Muslim law and jurisprudence, a member; and the appointment of every such person shall be made either by name or by designation.
The objection, if any by any person, would seriously undermine the rule of law since what is being actually done is doubting the integrity of a sitting in service sessions judge and it is well known that no such appointment of the sessions judge can be done without the approval of the chief justice of the respective states.
The powers of the Waqf Board to declare the property as waqf has to undergo a rigorous process of first doing a proper enquiry before declaring it as a waqf and then justifying it before the tribunal presided by the district judge which is then subject to revision by the high court and an SLP before the Supreme Court. It is a robust mechanism with very little chance of any injustice to any genuine claim being rejected.
Therefore, the fight against the amendments is the fight for the soul of India and its adherence to the constitutional principles and rule of law, non-discrimination and co-existence which are the foundations of a stable democratic country.
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Syed Akmal Razvi is a lawyer practising in the Karnataka High Court. The views expressed here are the author’s own, and Clarion India does not necessarily subscribe to them. He can be contacted at akmalrazvi@yahoo.com
