Like The Judiciary, The Government Too Is Sans Religion

The Chief Justice of India, Justice Sanjeev Khanna said while listening to the petitions challenging the Waqf Act, "When We Sit On Bench, We Lose Our Religion". He was responding to Solicitor General Tushar Mehta's argument that if non-inclusion of non-Muslims in the Board and the Council is taken as the rationale then only Muslim Judges would be able to hear this petition. "Then, your Lordships cannot hear this matter if we go by that logic," Mehta said.

The CJI is absolutely correct that Justices do not have any religious proclivities while discharging judicial functions. But so is the character of the State that is elected democratically. So is the character of various functionaries of the States such as the Collectors while discharging functions as head of the government in the districts.

Any Government that comes to power swears by the constitution and its secular credentials and takes oath to discharge the functions without fear or malice. Hence any act of the Government should be judged by whether it serves the public goods. Those who challenge the authority of the government on one pretext or the other should not forget that the government has Eminent Domain which empowers the government to seize private property for larger public use. It is only mandated to give fair compensation.

Any act by the government should be judged by the logic of larger public goods. In the case of the Waqf Act, the logic should be whether the new Act benefits or harms the community. Here the public good is the larger Muslim community, particularly the poor, for whom the Waqf has been created. The first question to be asked is whether the government has the right or not? This right cannot be questioned and earlier also amendment to the Waqf Act was made by various governments.

Now the next question that has been rightly asked is whether Hindus (the government says non-Muslims) can be included in the Board and the Council meant to act in advisory committee for better governance of Waqf property. The argument suffers from logical fallacy. The Waqf is not for management of Mosques or Dargahs. It is for management of properties that have been donated by believers in the name of Allah for the benefit of the community. The character is secular.

Waqf needs to be utilized for benefits of the poor among the community and also for upkeep of the various religious structures. The Waqf Board or Council does not govern religious institutions of the Muslims. They only look after the property in caretaker capacity. It is baffling how nomination of two Non-Muslim members in the Board or Council can be taken as interference in religious affairs. This is nothing but trying to polarise the community on communal lines.

A question has been raised whether non-Hindu can be appointed to various Boards controlled by the Government while running the temples. One must understand the basic distinction between the Waqf and a temple property. Temple often is the property of a deity and the temple is relevant merely for benefit of the deity and the believers in that deity. Temple property is meant to take care of upkeep of the temples. The governance of temple property is not an issue here. Whether someone who does not believe in idol worship or any form of God can become a member of any Board that governs such a temple.

The Tamil Nadu Government under the DMK had argued that it had the right to nominate non-Hindus in Temple Governing Board and also stressed that "the sanctity of the temple is not affected by allowing non-Hindus into certain areas". The Madras High Court, however, put restrictions saying that non-Hindus should not be allowed to get closer to the sanctum sanctorum and they should be stopped at the temple's flagpole.

Also, unlike the Waqf Act, there is no institution that govern the properties of Hindus on the life of the Waqf. The Waqf Act has been enacted by the Government and amended by the Government from time to time. Post-Independence the Waqf Act was enacted in 1954 under then Prime Minister Jawaharlal Nehru. This was amended subsequently in 1964, 1969 and 1984. In 1995 an amendment enabled creation of Waqf Boards in various States.

This means that the Union Government always had a role and it was not resisted because it helped the vested interests to control the Waqf and increase their influence in the community. Most leaders vocal on opposing the new Waqf Act may have been a beneficiary of the Waqf. The Waqf does not prohibit leasing a property to non-Muslims. Also, these lands have been leased on at a pittance.

Temple administration in that way is a closed affair, something on the pattern of a Trust. Most temples are being run by one or the other Trust. This means that the Settlor has defined the composition of the Trustees but the final authority in case of dispute etc reside with the government which may be represented by a Hindu or a Muslim. The government can anytime inquire into affairs of the Trusts. A temple trust cannot say that the government representative looking into the affairs of the Trust should be a Hindu.
Many Muslim organisations fearing that the property claimed to be of Waqf may not be justified through papers since they may not have the papers. Let us try to understand this. In trying to claim a property close to 300 years old or more, vested interests in the community are trying to forget that India was under the British for 250 years or more. While every inch of property may not have been in record most lands were on record and so were the temples and mosques. The locals know whether a temple or a mosque has been old or not.

If there are no papers, this means that either the record has not been maintained or there has been no record of the same being a private property. As per the law if documents do not exist of land registration or acquisition, the land or such property belongs to the government. Periodicity of use or long existence of a structure cannot justify this to qualify to fall in Waqf control. Every district collector is supposed to map the boundaries and lands existing within his territory. So, the possibility of error is negligible.

It is therefore, pertinent, that such a high-level official of the rank of Collector is the one to investigate any claims on any land. He discharges this function for any property in the district. Can his authority be challenged when it comes to investigating the Waqf's claim over certain property? India, then will have two laws one for the general public and the other for religious institutions or community institutions. After all any decision of the Collector can be challenged in the court. That the legal process is long cannot be the argument.

The Waqf Act is to stop the tyranny of the system where the Waqf could claim any land as its own and the onus to prove otherwise was on the claimant. There was no civil appeal against the Waqf Tribunal's decision which means there was no guarantee of a fair play. Now the doors of higher judiciary have been opened for the aggrieved parties. This would also bring checks on the Tribunal to deliver Justice and prevent the Waqf from becoming a land grabbing agency. Appeal now can be filed within 60 days of decision of the Tribunal.

Land records are getting computerised in modern India and it would be difficult to claim land of others legally. If a property has been abandoned, it does not become property of someone else due to use by default. This is because you cannot make separate law for the Waqf. The law made would be same as for other civil claims. So, the same law of limitation should apply and corrections have been incorporated in the new Act.

Say for example a person constructs a temple in remote forest land where the government does not really go. The person can claim this to be an ancient temple. Can the government then drop its claims over the land merely because of adverse possession. This would promote land grabbing. One way to establish the claim could be carbon dating of certain structures.

When changes are brought out anywhere, there are bound to be resistance. But the sound and fury of the opposition, mostly by vested interests, should not drown the faculty of reason. The real test of the Waqf Act before the Apex Court is whether or not it violated the Fundamental Rights. And one must keep in mind the maxim what is good for the goose is good for the gander. Some sections in the Hindus have already started demanding similar institution for Hindus.
Ends