Powers Of Collector Stayed, Non-Muslims On Boards Limited: Waqf Case Recap

The Supreme Court on Monday temporarily halted key provisions in the federal government's contentious new Waqf laws, including one demanding potential donors be a 'practicing Muslim' for five years and another nominating non-Muslim individuals to federal and state Waqf boards.

The third halted provision granted District Collectors sweeping powers to decide if a property can be considered waqf; "the Collector cannot be permitted to adjudicate the rights of personal citizens, and this will violate the separation of powers..." the Supreme Court ruled.

A bench of Chief Justice BR Gavai and Justice AG Masih said these provisions would lead to an 'arbitrary exercise of power', and paused them till pleas challenging the constitutional validity of amendments to laws governing Waqf, i.e., charitable donations by Muslims, are settled.

But the court refused to stay a requirement for registration of waqf properties; the judges reasoned this aspect was present in law before it was amended but never enforced.

Petitioners challenging waqf law changes had argued implementing this now would discount 'waqf by user' properties, i.e., those claimed by historical possession rather than documentary evidence.

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"We have held registration existed since 1995 to 2013... and again now. So we have held registration is not new," the Chief Justice said as he dictated an early interim order.

In April the court said it initially consider arguments on these points - the 'waqf by user' clause, non-Muslims on waqf boards, and status of disputed properties - before the interim order.

What Is Waqf Bill

In August last year a proposal to amend 44 sections of the Waqf Act of 1955 - with the stated aim of better managing waqf properties, which refer to land set aside, under Islamic law, for religious or charitable purposes - was tabled in Parliament, and kick-started a legal and political row, which included violent protests in parts of the country and three deaths in Bengal.

Apart from the 'five-year' rule and nominating non-Muslim members to each Waqf board, other proposals included appointing a Union Minister and persons of 'national repute' to the boards and allowing a District Collector the final word on issues related to waqf property ownership.

The proposals were sent to a joint committee - and more drama followed, including opposition MPs accusing the committee chair, Jagdambika Pal of the BJP, of ignoring their views, and the Trinamool's Kalyan Banerjee actually smashing a glass bottle on the table (and cutting himself).

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The BJP refuted claims of manipulation; panel member Aparajita Sarangi said Mr Pal "tried to hear everybody out and gave sufficient time for everybody to move amendments..."

The committee eventually greenlit 14 changes, all of which were made by the BJP, and the amendments became law in April this year, after yet more stormy face-offs in both Houses.

Waqf Bill In Supreme Court

After the bill was passed several petitioners, including Muslim religious groups, individuals, and political leaders, challenged the constitutional validity of the law and its provisions. They argued the amendments undermined the rights of Muslims - as laid out in the Constitution.

In response, there were petitions filed - some by BJP MPs - in support of the amendments.

In April the Supreme Court clubbed some of these and discarded the other, noting the sheer volume of petitions filed made it "impossible to deal with..."

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The government was given a week to file a reply and told the court would not 'trespass into the domain of the legislature', and that the separation of powers had been made clear by the Constitution.

However, as the final arbiter on issues involving the Constitution, the Supreme Court agreed to hear petitioners who insisted that the changed Waqf laws trampled fundamental rights, including the right to equality and the right to pursue religious practices.

Waqf Case Supreme Court: 'Waqf By User'

In early hearings senior advocate Kapil Sibal argued that many of these provisions violate Article 26 of the Constitution, which guarantees the freedom to manage religious affair.

Specifically, the 'waqf-by-user' clause attracted spirited legal discussions, with Mr Sibal pointing out it is unreasonable to want documented proof of ownership for historical structures; "The problem is, if a waqf was created 3,000 years ago, they will ask for the deed," he said.

But the court then pointed to various reports about modern government buildings being claimed as 'waqf', including the ground on which the Delhi High Court stands. "We are not saying all waqf by user is wrong, but there is genuine concern..." then-Chief Justice Sanjiv Khanna said.

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Solicitor-General Tushar Mehta, appearing for the government, rebutted by pointing to cases of fraud and protracted legal tussles over encroachment. Proper legal ownership needs to be demonstrated rather than simply recognising waqf purely on long-term usage, Mr Mehta said.

But the court countered by asking, "How will you register such 'waqfs by user'... what documents will they have? Yes... there is some misuse. But there are genuine ones too. 'Waqf by user' is recognised. If you undo it, then it will be a problem," then-Chief Justice Khanna said.

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The government then told the court no waqf property would be denotified till the court ruling.

In its interim orders Monday, the 'waqf by user' point was not deleted or halted, but the court granted temporary protection to such properties. The court ruled the government could not alter the status of disputed waqf property immediately, and had to first approach a waqf tribunal.

The tribunal's decision can then be challenged in the High Court.

Waqf Case Supreme Court: Non-Muslim Members

The composition of waqf boards has been a huge flashpoint in this matter.

In April then-Chief Justice Khanna asked the government a pointed question - "... are you saying you will allow Muslims to be part of Hindu endowment boards?"

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The government had said nominating women and Muslims from different sects would promote gender equality and ensure representation from across the spectrum of Islam. On nomination of non-Muslim members the government said it would bring 'oversight' to board operations.

Mr Sibal, however, repeated what the court had asked earlier; pointing to Hindu and Sikh religious bodies, he said, "... not a single person is a Muslim or non-Hindu" and complained the revised constitution of the Central Waqf Council would make Muslims a minority.

Senior advocate Huzefa Ahmadi asked how someone could be identified as a 'practising Muslim' to fulfil the criterion under the new law. "Can someone ask me, do you pray five times a day... and then someone will ask me if I drink... is that how it will be judged?"

The petitioners also argued that nominating women to waqf boards is a 'token' act since actual decision-making power would be vested with political appointees.

The government, meanwhile, argued that waqfs are not a religious pre-requisite of Islam and, therefore, regulation does not violate religious freedom. Solicitor General Mehta argued that since waqf boards discharge only secular functions 'having non-Muslims won't change anything'.

In its interim order the court did not eliminate the provision to appoint non-Muslims, but limited the number to three of 11 members on state waqf boards and four of 22 in the central council.

Waqf Case Supreme Court: 'Practicing Muslim' Rule

The rule for potential donors to be 'practicing Muslims' for five years has been stayed fully, representing a big win for the petitioners. The court red-flagged potential abuse of power in this case, and called for a discussion on framing of rules to establish a person's religiosity.

Across hearings in April and May various petitioners had criticised this amendment, arguing it runs completely counter to the idea of India as a secular nation.

Senior advocate Rajeev Dhawan, appearing for one such petitioner, said. "One of my clients is a Sikh... he says, 'I want to contribute to waqf... the question also goes to the root of secularism."

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"Endowments are there in every religion. Which religious endowment asks you to prove you have been practising it? Who asks for 'proof of religion'?" senior advocate Abhishek Singhvi asked.

The government had argued this is a necessary provision to prevent fraudulent transfer of property, i.e., sudden conversions to Islam to transfer land or shield it from civil law dispute.