By Anwarulhaq Baig
New Delhi— The calls to remove Delhi Government’s Principal Secretary (Home), Ashwani Kumar, from his position as Administrator of the Delhi Waqf Board have gained momentum as several petitions have been filed in the high court challenging his dual role, arguing that Kumar, as the head of the Delhi Religious Committee, is issuing orders for the demolition of waqf properties, which he should be protecting.
The controversy around Ashwani Kumar
The controversy erupted after Ashwani Kumar was appointed both Administrator of the Delhi Waqf Board and head of the Delhi Religious Committee. This committee, during the past year, recommended the removal of several prominent waqf properties, including Dargah Mamu Bhanja, Sunehri Bagh Masjid, Masjid Madrasa Kangal Shah, and Akhundji Mosque.
Waqf properties in India
It is pertinent to mention here that India has a large number of Waqf properties, which are Muslim religious endowments managed by Waqf Boards. The Waqf Act of 1954 was passed to improve the administration of these properties, and the Central Waqf Council was established in 1964 to advise the government on Waqf matters. There are currently 30 State Waqf Boards in India, which were established by the state governments to manage, regulate, and protect Waqf properties.
PIL against Administrator of the Delhi Waqf Board
On Wednesday, a division bench led by Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora heard a Public Interest Litigation (PIL) filed by the Secular Front of Lawyers. Represented by senior advocate Salman Khurshid along with advocates Imran Ahmed, Shoaib Ahmed, Ms.Sonika Choudhary and Ms. Anshu Kapoor, the PIL challenged the appointment of Ashwani Kumar as Administrator of the Delhi Waqf Board. The petitioners argued that the appointment is illegal, arbitrary, and against the board’s interests.
The Delhi Waqf Board’s statutory term of five years expired on August 26, 2023, leading to its dissolution. However, Ashwani Kumar was appointed as administrator on January 10, 2024.
The petitioners sought a direction from the authorities barring Kumar from passing any orders related to Waqf properties or the board while acting as Administrator. They argued that Waqf properties, some existing for centuries and notified in the Delhi Gazette, are not under the purview of the religious committee, which deals with unauthorized structures on public land. Additionally, they contended that an administrator’s role is to improve the organization they lead, not act against its interests. In this case, Kumar appears to be doing the latter by jeopardizing Waqf properties instead of protecting them.
The court had previously listed the petition for hearings on April 16 and April 30, before adjourning it to May 8.
Advocate Firoz Iqbal Khan informed that during the hearing on Wednesday, the division bench advised waiting for the outcome of an earlier petition. This earlier petition involved a similar prayer and is currently under consideration by a single bench with a reserved judgment. Advocate Khan further informed that the division bench listed the matter for other prayers in July 2024.
An earlier petition by Advocate Shams Khwaja, challenging the administrator’s appointment on similar grounds, was pending before a single judge bench led by Justice Subramoaniam Prasad. The judge reserved judgment on this petition on March 12, 2024.
Advocate Shams Khwaja also highlights conflict of interest in administrator’s dual role
Advocate Khwaja, who represents various Waqf-related cases, acknowledged the government’s authority to dissolve the Waqf Board and appoint an administrator, but emphasized that this power should not be exercised against the interests of Waqf properties.
Adv. Khwaja asserted that the court should prioritize the interests of the Waqf, as outlined in the relevant statute. He informed Justice Subramonium about this during the hearing.
When questioned by the learned judge about the appointment process itself, Khwaja clarified that his objection lies with the purpose.
Advocate Shams said, “First of all, the interest of the Waqf will be considered, which is stated in the statute. I informed Justice Subramonium about this during the hearing. Then, the Judge asked what is wrong with the process of appointing the administrator? I replied that we have no objection over the process, but we have an objection to the spirit of the process of the appointment because the spirit is against the interest of the Waqf.”
Khwaja highlighted the conflict of interest arising from the administrator’s dual role. The same person cannot be responsible for both demolishing and protecting Waqf properties.
Advocate Shams explained that it has happened that a person who is to pass the order for the demolition of a masjid, madrasa, or graveyard, meaning one who is the Chairman of the Delhi Religious Committee and is also the principal secretary of the Home Department of the Delhi NCT government, in both capacities, he is signing the orders for bulldozing the Waqf properties. ”It is very explicitly realized that this person cannot play the role of protecting Waqf properties at the same time. It means it is not possible that the same person, who first signs demolition orders against Waqf properties, can be a protector of Waqf lands.”
Justice Subramonium reserved the judgement
Advocate Khwaja explained why they petitioned the High Court to remove the administrator. He stated that their petition sought a writ of mandamus, which can only be issued by the High Court, not a tribunal. Even if they hadn’t sought a mandamus, the current absence of a Waqf tribunal would have necessitated going to the High Court. The judge reserved the order without commenting on this point.
Retired Bureaucrat Criticizes Appointment of Waqf Board Administrator
While talking with Indiatomorrow.net, retired bureaucrat Abdul Hasib Ahmed criticized the appointment of Ashwani Kumar as the administrator of the Delhi Waqf Board, calling it a blatant conflict of interest.
“It is a blatant case of conflict of interest,” said Hasib Ahmed. “A person or official cannot be made the head of two different government bodies or organizations that have conflicting interests.”
Mr. Ahmed explained the conflict by using the example of a judge. Just like a judge recuses themselves from a case involving a company they previously represented as a lawyer, Mr. Ahmed argued that an official cannot head two government bodies with conflicting interests.
Ashwani Kumar’s Dual Role
Mr. Ahmed highlighted the specific conflict in Kumar’s case. While Kumar is the administrator of the Delhi Waqf Board, which protects Islamic endowments, he also heads the Delhi Religious Committee, which oversees the demolition of illegal religious structures on public land. This creates a situation where Kumar could be both approving the protection of a property and ordering its demolition.
He suggested that Ashwani Kumar should relinquish one of the two positions, preferably the Administrator of the Delhi Waqf Board. He asserts that there’s no provision for appointing an administrator for such a long period, and the board should be reconstituted as per law.
The Importance of the Waqf Board
Mr. Ahmed emphasized the Waqf Board’s role in managing and protecting Islamic endowment properties. He argued that dissolving the board for an extended period violates the Waqf Act. As per the act, the board should function continuously, with new members replacing those who retire. He criticized the government for not reconstituting the board simply because caretaker (mutwalli) elections haven’t been conducted.
The prolonged dissolution of the Delhi Waqf Board since August 2023 has raised concerns among stakeholders, who argue that the Board should have been reconstituted within six months as per the law.
Waqf Board Composition
According to the Waqf Act, the Delhi Waqf Board consists of members nominated from various categories, including caretakers (mutawallis) of Waqf properties, legislators (MLAs/MPs), and lawyers (Bar Council representatives). The state government schedules the first meeting and ensures all board members receive at least ten days’ notice to elect its chairman. The board must have at least six members.
Qualifications for Waqf Board Officials
Mr. Ahmed stressed the importance of appointing officials with a genuine interest in and knowledge of Islamic endowments. He believes board members and heads should typically be Muslims, considering the religious nature of the board’s responsibilities.
“Such a person who has an interest and is well-aware of Islamic endowments and can truly serve, manage, and protect Islamic properties should be appointed as the officials of the Board,” emphasized Hasib Ahmed.
Mr. Ahmed accused the government of undermining the Waqf Act by not reconstituting the board and keeping the present administrator in place, which creates a conflict of interest.
Controversial Orders by Religious Committee
Mr. Ahmed criticized the recent demolition orders issued by the Delhi Religious Committee, targeting several historical mosques, graveyards, and structures, even those registered with the Archaeological Survey of India (ASI) and the Waqf Board. He pointed out that the committee’s mandate is to address illegal structures on public land, which doesn’t apply to Waqf properties. Disputes concerning Waqf land should be resolved through tribunals, not the religious committee.
Example of Akhunji Masjid Controversy
Mr. Ahmed used the Akhunji Masjid as an example. While the matter regarding this centuries-old mosque was under judicial consideration, Kumar, in his role as head of the religious committee, ordered its demolition. Mr. Ahmed emphasized this as a clear case of conflict of interest.
Delhi Waqf Tribunal Inoperative for Past Two Years
The issue of the non-functional Waqf Tribunal, which adjudicates disputes related to Waqf properties, has further exacerbated the situation. The Delhi High Court recently asked the state government to clarify its stance on a plea seeking the constitution of tribunals under the Waqf Act, as the tribunal has been non-functional since April 2022.
Mr. Ahmed also discussed the non-functional Waqf tribunal, which adjudicates disputes related to Waqf properties. Mr. Ahmed explained that the tribunal, ideally consisting of a district judge and two members knowledgeable about Waqf and Muslim law, hasn’t functioned since April 2022. He believes a functioning tribunal is crucial for resolving issues concerning Waqf properties.
JIH Calls for Reconstitution of Delhi Waqf Board
Echoing concerns about the Delhi Waqf Board, JIH Assistant Secretary Inamurrahman, who oversees Waqf-related matters in the organisation, urged the Delhi Lieutenant Governor (who controls the Home Department) to take immediate action.
Inamurrahman called for the immediate reconstitution of the board, emphasizing the importance of appointing members well-versed in Waqf and Muslim laws. He also requested the removal of Ashwani Kumar, the current acting administrator appointed by the Lieutenant Governor.
“The impending Delhi Waqf Board should be reconstituted, comprising persons well-conversant with matters related to the Waqf and Muslim laws, instead of giving additional charge to an official as an administrator who heads the Religious Committee, creating a conflict of interest,” Inamurrahman asserted.
Inamurrahman expressed concern about recent controversies related to demolition orders and drives carried out by the Delhi Development Authority (DDA) based on recommendations from the Delhi Religious Committee. He argued that these actions targeted Waqf properties, which fall outside the purview of the Religious Committee.
He criticized the current situation where the same person chairs both the Religious Committee and the Waqf Board (acting as administrator). This dual role creates a clear conflict of interest, hindering the Waqf Board’s ability to protect the properties it should be safeguarding.
As the controversy surrounding the Delhi Waqf Board continues to simmer, concerned individuals, including Muslim lawyers and leaders, are calling for a swift resolution to protect the interests of Waqf properties and ensure transparent and fair administration of Islamic endowments in the national capital.
The Delhi High Court’s judgment on the pending petitions challenging Ashwani Kumar’s appointment holds immense significance, as it could potentially set a precedent and provide clarity on the issue of protection of Waqf properties.
