Document Fragment View

Matching Fragments

3. We have heard the learned Counsel for the parties at length and perused the record.

4. Islam is based upon the teaching of the Prophet Mohammad, who was not the creator, but a recipient and the communicator of the religion of Islam. The word 'Islam' means "peace and submission". In its religious connotation, it is understood as 'submission to the will of God' and according to Fyzee (Outlines of Mohammedan Law, II Edition) in its secular sense the establishment of peace. The word Muslim in Arabic is the active principle of Aslama, which means acceptance of faith, the noun of which is Islam. Muslim Law is recognised to be based upon a well recognised system of jurisprudence providing many rational and revolutionary concepts, which could not be conceived by the other systems of Law in force at the time of the inception of Islam. Even the Marxist theoretician like Karl Marx has acknowledged that every religion in its inception has been a revolutionary movement based upon the necessities and requirements of the Society. Sir Ameer AH in his book Mohammedan Law, Tagore Law Lecturers, IV Edition, Volume I has observed that the Islamic system, from a historical point of view was the most interesting phenomenon of growth. The small beginnings from which it grew up and the comparatively short space of time within which it attained its wonderful development marked its position as one of the most important judicial system of the civilised world. The concept of Muslim Law is based upon the edifice of shariath. It is therefore violence to the Islamic Law to urge that it was orthodox and did not permit tolerance, which in the present political parlance is termed as secularism. Islamic Law being based upon the requirements of the Society was progressive in thought and revolutionary in approach. However, there is no denial of the fact that such a law deals with only those who believes in the tenets of Islam, the authority of the Prophet and of the supremacy of Quoran. The progressive outlook and wider approach of the Islamic Law can well be appreciated from the fact that it has permitted the Indian Ordinary Courts to interpret the Islamic Law notwithstanding the institution of Qazi and Islamic Courts. Article 372(1) and Article 13 of the Constitution make it clear that Muslim Law as understood under the modern jurisprudence is a law, like all other laws in force immediately before the commencement of the Constitution and thus subject to the provisions of the Constitution.

5. After a careful consideration of the objections to the various provisions of the 1984 Act, and after holding wide ranging discussions with the leaders of the Muslim Community, it has been decided to bring in a new comprehensive Bill on wakf matters incorporating the features of 1954 Act and such provisions of the 1984 Act in respect of which there was a near consensus.

6. Now, the new Wakf Law will have inter alia the following features:

(a) Wakf Boards for the States and for the Union Territory of Delhi shall have not less than 7 and not more than 13 members of which the majority will comprise such persons as are elected from amongst Muslim members of Parliament, Muslim members of State Legislatures, Muslim members of the Bar Council in a State and Mutawallis of wakfs having an annual income of Rs. 1 lakh or more. The nominated members will be from Muslim organisations of State eminence, recognised scholars in Muslim theology and a representative of the State Government not below the rank of Deputy Secretary. In a State where there are Shia wakfs but no separate Shia Wakf Board, at least one of the members shall be a Shia Muslim. A smaller Wakf Board is envisaged for Union Territories other than Delhi.
Provided that where the number of Muslim members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim member shall be declared to have been elected on the Board:
Provided further that where there are no Muslim members in any or the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1), the ex-Muslim members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college".

9. The learned Counsel appearing for the petitioner submits that as under Section 14(1)(b)(i) to (iv) persons not fully conversant with Islam can be appointed as members of the Board, the purpose of the Act is likely to be jeopardised and defeated. It is submitted that the composition of the Board as contemplated under the Act would defeat the very spirit of the wakf as envisaged under Muslim Law. It is stated that as a member of Parliament, member of State Legislature and of the bar council is elected by the whole section of the society including non-Muslims, such an elected person cannot really represent the interests of the Muslims or protect the community or preaching of Islam. The argument though apparently looks glittering, but when examined in depth drowns at the bottom of the well requiring no consideration worth the name. The intention of the composition of the Board and the purpose of the Act is to administer the property and not to give representation to the Muslim jurists or theologists. The elected Muslim members have been sought to be included in the Board upon consideration of their obligation and responsibility to the people in general and Muslims in particular. Responsible elected Members of the Parliament, State Legislature and Bar Council are rightly intended and expected to come to the expectation of the law-makers and contribute positively for providing better administration of wakfs and for matters connected therewith or incidental thereto.