Commentary on Waqf Bill 2010 – Part I
Dr. Syed Zafar Mahmood,
The Rajya Sabha Select Committee led by Saifuddin Soz submitted its report on Waqf Bill 2010 on December 17, 2011. The Select Committee has suggested that various important recommendations given in the reports made by Sachar Committee in 2006 and by JPC Waqf in 2008 should be included in the Bill, which were overlooked by the Ministry of Minority Affairs. For this, the Select Committee deserves deep appreciation. Now the community leaders should keep a close eye on the treatment given to the Select Committee by the Ministries of Minority Affairs and Law. I will explain these recommendations in detail in the third part of this series of my articles. Meanwhile, it is significant to realize that the term ‘Ministry’ here really connotes just those two-three ministry officers who decide the fate of five lakh Waqf properties belonging to sixteen crore Muslims in India at one stroke of pen.
It is primarily vital to know as to which of the important recommendations made by the JPC Waqf and Sachar Committee are not covered in the Rajy Sabha Select Committee Report. The record of proceedings before the Select Committee would show that the constraints behind non-coverage of some important JPC-Sachar recommendations in the Select Committee’s Report are the objections raised by the officers of the Ministries of Minority Affairs and Law which, due to paucity of time, the Select Committee could not deeply study in order to examine their acceptance or controvertibility.
These valuable recommendations of Sachar Committee and JPC have profound and far-reaching impact on the maintenance & consolidation of Waqf properties, their management, development and utilization. If the Muslim community and their well wishers do not give the required attention now the Waqf properties will continue to suffer many of the weaknesses and loopholes in law for centuries to come. The omissions in the Rajya Sabha Select Committee report are as follows:
Bureaucratic interference in Waqf affairs
JPC Waqf and Sachar Committee both recommended that unnecessary bureaucratic interference in the Waqf affairs should be stopped. Instead of including this important recommendation in Waqf Bill, on the contrary, the Ministry of Minority Affairs proposed to amend Section 56 of Waqf Act. Accordingly any leasing proposal for a period of more than a year should be sent by State Waqf Board to the State Government who can take a view thereupon in forty five days. Thus, the Waqf Boards’ autonomy is proposed to be blown to winds. The Select Committee has raised no objection to this proposed amendment.
Appointment of Waqf Survey Commissioner
As per the Waqf Act 1995, the appointment of Waqf Survey Commissioner is an option depending upon the State Government’s will. The Sachar Committee recommended making such appointment mandatory. The JPC added that all those Waqf properties should be included in the next survey as existed on August 15, 1947. But the Ministry of Minority Affairs did not incorporate these two recommendations in the Bill and now this matter also slipped from the attention of the Rajya Sabha Select Committee.
Full time chairman of Central Waqf Council
The Minister concerned is ex officio Chairman of the Central Waqf Council. The Minister having his hands full with numerous matters, from the very inception of the Council till date, the problem continues that none of the chairmen was able to pay exclusive attention (unlike the full time chairmen of scheduled castes and scheduled tribes commissions) to the Council’s day today matters as is required to oversee & supervise the proper state management of these five lakh Waqf properties, their consolidation, development and utilization. Therefore, the Sachar Committee recommended that the Chairman of the Council should be a full timer. He could be a retired supreme court judge, former vice chancellor of a university or ex-chairman of any Waqf Board or the like. Also, for appointment as the Secretary of Central Waqf Council there are no parameters prescribed in law nor is fixed his minimum level in the central government hierarchy. Consequently, the Secretary of Central Waqf Council does not carry conviction in the corridors of power nor does his low official status generates much confidence in the various echelons of administration and public relations. Therefore, Sachar Committee recommended that the minimum level of the Secretary of the Council should be of Joint Secretary to the Government of India. However, in respect of both of these recommendations, the Ministry of Minority Affairs did not make any provision in the Bill and the Select Committee too missed them out.
Waqf cadre of civil servants
There are 28 Waqf Boards in the Country. In each Board, the person who works more than eight hours daily and leads the management of all the Waqf departments is the CEO. From 1954 till date there is a provision in Waqf Law that the CEO of Waqf Board shall be Muslim. But there is no mention of any basic eligibility for this post nor any minimum hierarchical level been prescribed. The JPC and Sachar Committee both toured across the country, widely interacted with the state waqf board chairmen, members, CEOs, Mutawallis, they discussed the issue with the chief ministers and officers in the secretariats. They found that invariably a Muslim officer of appropriate level is not available in the states. So, usually junior and non-eligible persons get appointed as the CEO of Waqf Board.
Taking these factors into consideration, the Sachar Committee recommended that a separate cadre of specifically trained officers should be created for the management of Waqfs in the country. But alas ! just two-three officers of the Ministry of Minority Affairs, without any study, made up their mind that this is not to be done and recorded on the file that this recommendation is not to be accepted. This very logical recommendation did not receive any consideration at any higher level. Similarly the recommendation to establish a National Waqf Academy for the training of the Waqf officers and staff of the Waqf Boards and CWC from time to time, no proactivity is forthcoming till date. These two issues too do not find mention in the Rajya Sabha Select Committee Report. This issue will be discussed in detail in the next article of this series.
Waqf land on lease
The period of three years is not enough to take any land on lease for the construction of an educational institution or hospital etc. Therefore, Sachar Committee recommended that if a registered trust or registered society applies for such lease, then after essential investigations, provision should be made for leasing out the Waqf property for up to thirty years. But in the Bill, the Ministry of Minority Affairs did not confine such elongated leasing to registered trusts or registered societies; it rather opened longer leasing provision to even individuals and other applicants. This leaves avoidable scope for exploitation of the Waqf properties. The Ministry also provided in the Bill that the Waqf property can be given on lease for personal commercial use for a period of fifteen years and for this the government kept to itself the right of framing rules. The Select Committee has opposed this provision of the government’s right to frame the rules.
Magisterial powers of Waqf Board
To empower the Waqf Board for effective removal of the unauthorized occupation of Waqf properties, the JPC had recommended that the CEO of Waqf Board should be given magisterial powers. And, penalty should be levied against the government officers who do not take the required steps in time for removing the encroachment. These recommendations of JPC have no mention either in the Waqf Bill 2010 or in the Select Committee report. Another concern is that the definition of ‘Waqf Premises’ is not given in the law. Consequently, the Waqf Board has lost its cases in the court of law many times. The Sachar Committee, after conducting country-wide survey and studying the decisions given in many cases, proposed a comprehensive definition of ‘Waqf Premises’. However, this too has no mention in the Bill and the Select Committee Report.
There is a typing error in the current Waqf Act. In Section 3(R), instead of “Waqif” (donor who makes waqf), the word “waqf” is erroneously mentioned. In the amending provision to remedy this error suggested by the Ministry of Minority Affairs, an uncalled for extension has been proposed. Without any background perspective, a conditional line has been added that if the succession link is broken then the benefit of concerned Waqf will go to the ‘Community’. Here the word Community has not been defined. Thus the door has been kept open for judicial interpretation of the meaning of the word ‘Community’. The Rajya Sabha Select Committee has made no mention in its report to remove this newly proposed insertion. If this portion has to be retained in the Bill, it is necessary that the word Community should be replaced by “Muslim Community of India” so that there is no chance of any confusion in future in explaining the word Community.
Exemption of Waqf properties from Rent Control Acts
Everyone knows that the Rent Control Acts are heavily tilted in favour of the tenant. Consequently, the income of Waqf revenues has been at the lowest ebb. Cases have been lost by the Waqf Boards in the courts. Thus the Muslim community has been raising the demand that Waqf properties should be exempted from the rent contract acts. But despite years of struggle, only four states have so far provided such exemption in their Rent Control Acts. At this pace it may take centuries to achieve the all-India target. Hence the Sachar Committee recommended that an overriding provision should be made in the central Waqf Act that the Waqf properties shall be exempt from all rent control laws by whatever name called. The Inter-ministerial Committee of Secretaries which was formed to implement the recommendations of Sachar Committee also agreed with such overarching exemption. But just three-four officers of the Ministries of Minority Affairs and Law overruled everybody else. The Rajya Sabha Select Committee too did not take note of this significant omission. One hopes that the opinion of three-four officers from these two ministries is placed before sixteen crore Indian Muslims, their well-wishers, legal experts and other intellectuals. After seeking their opinion the Government and the Parliament should take a decision in this regard.
Waqf Tribunal
The position of the Chairman of Waqf Tribunal is normally given to a Civil Judge by giving him additional charge. Everyone knows that the judges are constrained by time to complete even their original judicial duties in time. It is, thus, all the more difficult for them to dispense timely justice during the course of their additional charge. Therefore, the Sachar Committee said that the Chairman of the Waqf Tribunal and its Members should be full-time officers. The JPC added that the Waqf Tribunal be allowed only one year to decide a case. However, the Ministry of Minority Affairs overlooked both these recommendations without any explanation. The Rajya Sabha Select Committee also maintained silence thereupon.
The Muslim community and its well wishers need to vigilantly persevere to push the necessary amendments to be made in Waqf law. Otherwise, in the words of Dr Sir Mohammad Iqbal:
Fitrat afraad se ighmaaz bhi kar letee hai,
Kabhi karti nahin millat ke gunaahon ko ma’aaf
Nature can reprieve the mistakes committed by individuals
But it never forgives the community for its sins.
Part 2: http://twocircles.net/2012apr30/indian_waqf_service_impeccable_remedy_waqf_mismanagement.html
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The author is president, Zakat Foundation of India, he can be contacted at [email protected]