By Md. Ali, TwoCircles.net,
New Delhi: The Central government is planning a series of changes in the way Waqf properties are managed across Indian through the Waqf Bill 2010, an amendment of The Waqf Act, 1995. The Bill is at present with the select committee of Rjya Sabha. Among other things the bill proposes is the constitution of a Waqf Development Agency which could use the earnings from the Waqf for the development schemes of Muslims. The Bill also proposes mandatory registration of Waqf properties. According to a parliamentary report, they can generate over Rs 10,000 crore in potential revenue.
But there is a considerable amount of skepticism about and anger over the bill among the Muslim civil society organizations. They claim that they were not consulted when the draft of the Bill was being prepared. They also recommend a few amendments in the current draft of the Bill saying that if passed in its current form, the Bill could do “irreparable” harm to the interests of the Muslim community. Some have gone to the extent of calling it as a “conspiracy” against the community.
At the forefront of the campaign against the Bill and the way Salman Khursheed led the Ministry of Minority Affairs handle the Bill, is Syed Zafar Mahmood, chairman of Zakat Foundation of India. In an e-mail interview with TwoCircles.net from the US where he has gone for an official tour, Mahmood describes in detail the problematic aspects of the Bill.
While framing the Waqf Bill 2010, Mahmood says, the Ministry of Minority Affairs has provided that where the line of succession of Mutawalli (person responsible for a certain Waqf property) fails, the income of the waqf shall be spent for education, development and welfare of the community.
However, the word ‘community’ has not been defined anywhere in the proposed Bill or the existing Waqf Act of 1995. Now Mahmood argues that, this kind of lacuna leaves scope for the judiciary to dilute the meanings of the word ‘community’.
So Mahmood, who was also the PM’s appointed Officer on Special Duty to the Sachar Committee, recommends that the word ‘community’ must be replaced in the Waqf Bill 2010 by the phrase “Muslim Community of India”. Otherwise, the waqf properties, in addition to being widely encroached, shall no longer be available for Muslim welfare, he argues.
The ZFI Chief has also problems with the role of the MMA in drafting the Bill. For instance, the Joint Parliamentary Committee on Waqfs recommended that the CEO of waqf board should be at least of the rank of Director in the state government. But while framing the Waqf Bill 2010, the Ministry of Minority Affairs over-ruled even the JPC and doubly lowered the level of CEO down to Under Secretary in the state government.
He argues that CEO not being a high ranking officer, the work of the state Waqf boards suffers. The CEO should rank with senior state government officers so that the Board enjoys sufficient clout with the government in day to day interaction and thereby is able to safeguard Awqaf’s interest when it comes to dealing with the government machinery.
The third most important point, argues Mahmood, the definition of the word ‘encroacher’ as proposed by Sachar Committee has also been watered down by the Ministry of Minority Affairs. A parliamentary report says of the 4 lakh hectares of wakf property, nearly 3 lakh remain encroached, often by government entities.
Moreover, the ‘Statements of Objects and Reasons’ submitted by the Minority Affairs Ministry to the Parliament along with the proposed Amendment Bill are silent on these vital issues of omission and commission.
Mahmood demands that the Select Committee of the Rajya Sabha currently looking into the Waqf Bill 2010, the Prime Minister and the UPA chairperson must prevail upon the Ministry of Minority Affairs and must ensure that necessary amendments are made in the Bill before it is considered by the Rajya Sabha.
Zafar Mahmood, who as an OSD with the Sachar Committee had done several surveys of Waqf Boards across the country, has made up a list of problematic aspects of the Waqf Bill 2010, particularly in the light of the recommendations of the Sachar Committee report on Waqf. They are as follows:
1. Preventing State Government’s unauthorised overruling of Waqf Board Actions
In some cases, the state Government has unauthorizedly passed orders over-ruling the quasi-judicial orders given by the Wakf Board. Sachar Committee recommended that the Act should be amended to preempt these illegal and harmful intrusions in the Waqf domain. The Bill of 2010 is silent on this score.
2. Providing Independent President of Central Waqf Council (CWC)
Sachar Recommendation: A Union Minister occupies the position as the ex-officio President of the Central Wakf Council. Given his preoccupations, often the Council is not able to prepare and take timely action on matters of urgency. It is, therefore, proposed that a full time President should be appointed from out of eminent persons like retired high court judges, chancellors and vice chancellors of central universities and former chiefs of state Wakf Boards. The President may hold office for a period of three years.
There is no provision in this regard in the Bill.
3. CWC Members
Sachar Recommendation: The other Members of the Central Wakf Council could be nominated from a list of eminent Muslims drawn from various professions such as architects, doctors, lawyers, chartered accountants and academicians.
The bill does not entertain this recommendation either.
4. Secretary of CWC
Sachar Recommendation: The Secretary of the Central Wakf Council should be an officer of the rank of at least Joint Secretary to Government of India so that meaningful and effective communication and interaction with government authorities is facilitated. In order to be effective, this officer must have a good knowledge of Wakf matters, Muslim scriptures and proficiency in Urdu.
There is no provision in the Bill to execute the recommendation.
5. State Waqf Board Chairman & Members
Sachar Recommendation:
The Chairmen and Members of the State Wakf Boards can be selected from a list of eminent persons in each state. For example, a retired high court judge, the former vice chancellors, and those who have established Muslim educational institutions of repute should be considered for appointment in the Wakf Board. The other members of the Wakf Boards can be nominated from a list of Muslim professionals drawn from various professions such as the architects, doctors, lawyers, chartered accountants and academicians.
There is silence in the Bill on this aspect also.
6. CEO of State Waqf Board – Indian Waqf Service
Sachar Recommendation: The Act does not provide any qualification for a person to be appointed by the state Government as Chief Executive Officer of the Board. It has been found that in cases where the Chief Executive Officer is not high ranking in the hierarchy of state bureaucracy the interests of the Wakf Board often suffer. It is, therefore, necessary that the Chief Executive Officer must be full time and must rank with senior officers of the state Government. Ideally a Class I Officer of All India or Central Services directly recruited through UPSC should be appointed as CEO. There is strong case to create a new cadre of officers to manage the affairs of State Wakf Boards and Central Wakf Council. It is estimated that up to 200 Group-A officers are needed to service the Wakfs affairs across India. The government may, therefore, consider creating a new cadre of officers to be recruited by the UPSC so that they can deal with the specific affairs of the Wakfs efficiently. Such officers, however, should have the knowledge of Islamic law and Urdu, as most of the documents relating to Wakfs are in that language.
Indian Waqf Service has not been created and the new bill has no provision for that either. Even the bureaucratic level of the CEO has been lowered to the Under Secretary to the state government.
7. Removal of Avoidable Judicial Dichotomy
Sachar Recommendation: Amendment of Wakf Act Section (6) sub-section (1): The Supreme Court in Board of Muslim Wakf, Rajasthan vs Radha Kishan and Others stated that where a non-Muslim is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list of Wakfs. Such a person is not required to file a suit (within a period of one year) for declaration of his title, as required in the Wakf Act. That is to say, the special rule of limitation laid down in the proviso to sub-section (1) of Section 6 is not applicable to non-Muslims. Such interpretation is detrimental to the interests of Wakf and may well tend to encourage encroachments. Section 6 may therefore be amended to avoid the confusion and the amendment should be given retrospective effect from the date of notification of the property as Wakf. In section 6(1) of the Wakf Act 1995 after the expression “or any person interested therein” the following words may be added “irrespective of his / her / its religion”.
There is no such amendment in the Bill.
8. Enhanced Lease Period
Sachar Recommendation:
Increase the maximum period of lease of Wakf properties from 3 to 30 years where the property is used by registered charitable societies or trusts for building and/or running educational or health care institutions, or for other social and economic developmental purposes consistent with the objects of the Wakf (if any specified) and as permissible under Islamic law.
The vital recommendation regarding “registered charitable societies or trusts for building and/or running educational or health care institutions” has not been included in the Bill. There is likelihood of big misuse of the amendment as has been framed in the Bill. The requirement of the allottee being a registered society or registered trust and the requirement of “building and/or running” educational or healthcare institutions have been deleted from the proposed Bill.
9. Incomplete definition of ‘Encroacher’:
Sachar Recommendation: The definition of ‘Encroacher’ needs to be inserted in Section 3. This definition should say that ‘Encroacher’ means “any person occupying the Wakf premises without the authority of law and includes a person whose tenancy, lease or license has expired or has been terminated by the Board, or who has altered the property leased out or occupied by him without the prior written permission of the Wakf Board concerned”. The inclusion of this definition helps the Wakf Boards in removing encroachments.
The vital underlined portion has been deleted from the Waqf Bill 2010.
10. Waqf Tribunal Members to have Independent Charge
Sachar Recommendation: It has been observed that the Wakf Tribunals as notified in the Wakf Act have been found to be not as effective as they were envisaged to be (Section 83 and 84). The primary reason is that the members of the state judicial service who preside over the Wakf Tribunals normally hold dual or multiple charges, i.e., as district, sessions or civil judge. Consequently, they have paucity of time in attending to Wakf matters and the Tribunals in some instance sit only a few days in a month. It is common knowledge that delay in adjudication of properties especially suffering from encroachment / unauthorized construction / illegal occupation / misuses creates its own resultant problems. Additionally the Wakf Board is deprived of the legitimate use of and profits accruing from the property. It would therefore be appropriate to amend Section 83 (4) of the Wakf Act to specify that the Wakf Tribunal will be manned by full time presiding officer appointed exclusively for Wakf purposes. The Wakf Tribunal would also have the power to give the interim relief and award damages etc., as the case may be.
Like other waqf-related recommendations of Sachar Committee, this too has been ignored by the Ministry of Minority Affairs which prepared the Waqf Bill 2010. One should not here that the Sachar Committee was appointed by the Congress-led UPA government when they came to power in 2004. The committee presented its report in 2006 but most of its recommendations are gathering dust in government office. The new Waqf Bill 2010 was a golden chance for the UPA-2, again led by the same Congress, to enact the recommendations of the Sachar Committee, but it has failed to do so, substantiating the charge of the majority of the minority community that Congress since Independence has just exploited the community.