Listen to article
The Waqf legislations in post-Independence India, like most of the Indian legal framework, are a colonial creation. These legislations were initially created by the British to clarify the legal status and streamline the administration of waqf properties. The latest legislation governing waqf properties at the central level is The Waqf Act, 1995 (Act 43 of 1995). It is a pretty comprehensive legislation covering nearly all aspects of the creation, administration and adjudication of waqf properties. This article undertakes a critical inquiry into the adjudicative set-up instituted by The Waqf Act, 1995 (hereinafter referred as “the Act”) and comments on its constitutionality.
S. 3(r) of the Act defines waqf as “the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable”. S. 13(1) empowers the state governments to establish waqf boards which are supposed to be the key bodies involved in the direct administration of properties registered or dedicated as ‘waqf’. The boards also function as the first level of decision-makers on the question of qualifying a property as ‘waqf’. They are vested with such decision-making powers under S. 40 of the Act. While the legal tenability of such powers and the procedure of their execution may be questioned, this article does not delve into those aspects. Under S. 83, the Act also provides for the setting up of Waqf tribunals as appellate bodies for resolving the disputes arising from the orders of boards and other connected matters.
S. 83(1), post the Waqf Amendment Act, 2013 (Act 27 of 2013), required the state government to “constitute as many Tribunals as it may think fit, for the determination of any dispute, question or any 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”. Prior to the 2013 amendment, the sub-section read as such: “The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.” Since the 2013 Amendment has been done away with in totality by Section 2 read together with the First Schedule of The Repealing and Amending (Second) Act, 2015 (No. 19 of 2015), the latter provision cited above shall be considered as the legislative status on Waqf tribunals. The Act originally had a provision (S. 83(4) of the Act) for single-member tribunals, with the member being a person from the State Judicial Service and not below the rank of a Class-I District, Sessions or Civil Judge. The 2013 amendment sought to expand the tribunals by adding to them a member from the State Civil Services and a scholar on Muslim law and jurisprudence. With its repeal, the original legal position stands retained.
The constitution of Waqf tribunals under S. 83 of the Act needs to be legally questioned and debated. It’s a well-settled legal fact that tribunals are generally set up primarily for the speedy dispensation of justice and to deal exclusively with issues which demand subject-matter expertise. While the Act per se doesn’t specify any clear objective regarding the setting up of Waqf tribunals, the same may be discerned from the statutes and provisions of the Act. S. 84 of the Act states that when a dispute arises before a Waqf tribunal for determination, it “shall hold its proceedings as expeditiously as possible and shall as soon as practicable, on the conclusion of the hearing of such matter, give its decision in writing and furnish a copy of such decision to each of the parties to the dispute”. So, one of the objectives of setting up such tribunals is a quick disposal of disputes related to Waqf properties. Another plausible reason for such a provision may be the supposed special legal knowledge required for resolving disputes involving Waqf properties. The latter point doesn’t get reflected directly from the Act as such. However, if it is to be presumed that Waqf matters are different from other property matters and do indeed require special knowledge of Islamic law, then the present constitution of tribunals surely doesn’t serve the purpose. That is because as the law stands today, these tribunals are just single judicial member bodies having no specialization in Islamic law.
Whatever the driving idea behind setting up separate judicial bodies for adjudication of Waqf related issues might be, it prima facie comes out as being violative of the fundamental right to equality guaranteed under Article 14 of the Indian Constitution. As held by the Supreme Court of India in State of West Bengal v. Anwar Ali Sarkar (1952 SCR 284), while scrutinizing the constitutionality of a legislation on the touchstone of Article 14, the following ingredients need to be identified – ‘intelligible differentia’ (whether a classification has been made and if such classification is reasonable) and ‘rational nexus’ (whether the reasonable classification does indeed fulfill the purported aims and objectives of the legislation). As it has been observed by a scholar, “With respect to the first element, it is clear that if the rule makes a classification, the right to equality is engaged. But sometimes it is also engaged when, even if the rule does not make any classification on the face of it, it has a disproportionate impact on different classes of persons (i.e., the classification is made not by the rule’s formal requirements but because of their operation in the real world).” (Tarunabh Khaitan, ‘Equality – Legislative Review Under Article 14’ in Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution)
By the creation of Waqf tribunals, the Act metes out preferential treatment to such property disputes by prioritizing their speedy dispensation over and above other property matters. Waqf property disputes are identified by the legislation as a distinct category to be dealt with speedily through separate judicial institutions, notwithstanding whether such matters actually require special tribunals with technical knowledge. If it is argued that the tribunals have been set up only for the speedy resolution of these disputes, and that the legal questions concern only property law without substantial content of Islamic law, then there is no reason why these disputes may be treated differently from other property disputes. On the other hand, if one argues that Waqf related issues do require special tribunals equipped with technical (i.e., Islamic law) knowledge, then the present constitution of the Waqf tribunals itself doesn’t meet the supposed benchmark as it lacks the presence of any person with competency in Islamic law.
Even if the Waqf tribunals were to have a person possessing knowledge of Islamic law, still the creation of such tribunals would be a violation of Article 14 because similar property disputes, such as those of Hindu or other religious endowments and charitable institutions, do not have equivalent specific dispute-resolution mechanisms and infrastructure. Here, it may be noted that the Waqf property disputes do not constitute a distinct class by themselves, but should rather be seen as a part of a larger class of disputes concerning religious and charitable endowments and institutions. So, consequently, the creation of Waqf tribunals results in a special treatment being offered to Muslims as a group, placing them over and above other religious groups. This consequence stands in violation of the equality clause as well as goes against the secular vision of our constitution. As held in S.R. Bommai v. Union of India (AIR 1994 SC 1918 ¶ 434 (10)), “Secularism is one of the basic features of the Constitution… To the State, all are equal and are entitled to be treated equally. In matters of State, religion has no place… Any State Government which pursues unsecular policies or unsecular course of action, acts contrary to the constitutional mandate…” The principle of secularism, being a part of the basic structure of our constitution, is inviolable.
Thus, one may perhaps convincingly argue that the constitution of Waqf tribunals under S. 83 of the Waqf Act of 1995 is violative of Article 14 of the Indian Constitution and therefore unconstitutional.