After Yasin Malik appears in SC, SG Tushar Mehta flags 'serious security lapse'
says he could have escaped or been killed
New Delhi, Jul 21: Solicitor General of India Tushar Mehta wrote to Union Home Secretary Ajay Kumar Bhalla on Friday flagging a "serious security lapse" after Jammu Kashmir Liberation Front (JKLF) chief Yasin Malik, serving life term in Tihar jail, was brought to the Supreme Court for attending a case proceeding.
"It is my firm view that this is serious security lapse. A person with terrorist and secessionist background like Yasin Malik who is not only a convict in terror funding case but has known connections with terror organisations in Pakistan could have escaped, could have been forcibly taken away or could have been killed," Mehta wrote.
He said that even the security of the Supreme Court would have been put to a serious risk if any untoward incident were to happen.
Mehta highlighted that there is an order passed by the Ministry of Home Affairs with regard to Malik under section 268 of the Criminal Code of Procedure which prevents the jail authorities to bring the said convict out of the jail premises for security reasons.
"In any view of the matter so long as the order under section 268 of CrP Code subsists, jail authorities had no power to bring him out of jail premises nor did they have any reason to do so," he said, adding, "I consider this to be a matter serious enough to once again bring it to your personal notice so that suitable action/steps can be taken at your end."
Malik appeared in the top court when a bench headed by Justice Surya Kant was hearing an appeal filed by the Central Bureau of Investigation (CBI) against the September 20, 2022 order of a trial court in Jammu in the 1989 kidnapping of Rubaiya Sayeed, the daughter of then Union home minister Mufti Mohammad Sayeed.
The CBI has appealed against the Jammu court order directing that Malik be produced before it physically on the next date of hearing so that he can be given an opportunity to cross-examine the witnesses of the prosecution in the Rubaiya Sayeed kidnapping case.
In his letter, Solicitor General Mehta gave details of the incident and said that on Friday everyone was shocked when news was received that the jail authorities are bringing Malik personally to appear before the apex court "as per his desire to appear as party in person".
"I had telephonically intimated you about this fact. However, by that time Yasin Malik had already reached the precincts of the Supreme Court of India," he said.
The top law officer said that neither the court had summoned his personal presence nor was any permission taken from any authority of the apex court in this regard.
"When I enquired from the officer who was in-charge of the security of Yasin Malik in the Supreme Court, the only thing he could show me was a printed notice in a general format of the Supreme Court which is sent with regard to every party to any matter in the court. The said printed notice informs the recipients of the notice to appear before the court either in person or through an authorised advocate.
"This is not either the permission of the Supreme Court to bring a convict facing an order under section 268 of CrPC to come out of jail nor it is requiring mandatory personal presence of the recipient of the order," he wrote.
Mehta said the jail authorities must be receiving hundreds of such orders/notices daily and have never construed any such order requiring personal presence of either any accused or any convict much less a convict having an order under section 268 of CrPC operating against him.
Rubaiya Sayeed was abducted from near Lal Ded Hospital in Srinagar on December 8, 1989. She was freed five days later after the then V P Singh government, supported by the BJP, at the Centre released five terrorists in exchange.
Now living in Tamil Nadu, Rubaiya Sayeed is listed as a prosecution witness by the CBI, which took over the case in early 1990.
Malik, 56, is lodged in Tihar Jail after he was sentenced by a special National Investigation Agency (NIA) court in May last year. He was arrested in early 2019 in connection with the 2017 terror financing case registered by the NIA.
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Once a Waqf, always a Waqf
Waqf, a pious endowment in Islamic law is rooted in the teachings of Prophet Muhammad (PBUH). A companion Abubakr Siddiq (RA) purchased and assigned the land for construction of mosque of Prophet in Madina. The Quranic revelation “You will not attain unto piety until you spend of that which you love”.
The messenger of Allah said, “when a human being dies his deeds end except for three: ongoing charity, beneficial knowledge or a righteous child who prays for him”. It has encouraged Muslims to dedicate wealth for good cause like Waqf.
Concept of Waqf
The concept of waqf in Muslim law is a permanent dedication of properties for religious, charitable and pious purposes. The word waqf comes from the Arabic word which means to tie up, stoppage or detain. The movable and immovable assets are dedicated unconditionally to divine and must be irrevocable. The donor is called a Waqif the Waqif appoints a Muthavalli or trustee to manage the property. The usufruct of property is utilised for the specific purpose for which it is dedicated or for the benefit of the destitutes. Once an asset is dedicated to the divine it cannot be sold transferred hypothecated or given as a gift.
Auqaf in India
The idea of waqf dates back to the Delhi sultanate when Sultan Muizuddin Sam Ghour dedicated two villages in favour of Jamia Masjid Multan. In Mughal rule there was no centralised management of waqfs. They are managed by individually appointed trustees under the supervision of local Imams. He was accountable to regional khazi. The law of waqf was codified under British rule. “Musalman Waqf Validating Act 1913”, “Musalman Waqf Act 1923” were passed. The “Shariat Application Act 1937” notified that waqf properties comes under Muslim personal law. After independence Waqf Act 1954 was enacted for the entire country except the state of Jammu and Kashmir. Further a comprehensive Act was brought in force in the year 1995. Adjudication of waqf litigations by the waqf Tribunals was introduced. There after it was further amended during 2013 providing representation to women in the waqf board, multi member waqf Tribunals and the alienation of waqf properties is considered as non bailable and cognizable offence with up to 2 years rigorous imprisonment.
Management of Auqaf in Karnataka
During Vijayanagar, Bahamani, Adil Shahi, Tippu and Wodeyar's rule, numerous charities and endowments were made to Hindus and Muslims. The religious endowments of Hindus and Muslims were managed as per the provisions of The Mysuru Muzrai Manual 1934. During 1974 the state government decided to transfer these waqf properties to the waqf Board for their management under Waqf Act 1954.
Abolition of Zamindari System
Consequent to the abolition of Zamindari system Karnataka Inam Abolition Act 1955, Karnataka certain Inams Abolition Act 1977 were passed. Consequent to the 73rd amendment to the constitution Karnataka Land Reforms Act 1974 was enacted. Due to these enactments more than 79,000 acres of notified waqf properties were granted to the Inamdars and tenants out of 1.7 lakh acres in the state.
Waqf is always a Waqf
Honourable supreme court of India in Syed Ali and Others V/S Andhra Pradesh Waqf Board ordered on 18/01/1998 that “Waqf is always a Waqf” and the grant of Patta in favour of Mokhasadar under the Inam Act does not in any matter, nullify the earlier dedication made of the property constituting the same as waqf.
The Karnataka State Board of Auqaf sought clarification from the state government regarding applicability of Karnataka Religious and Charitable Inam Act, Karnataka Certain Inams Abolition Act 1977 and Karnataka Land Reforms Act 1974 to the waqf properties in view of the aforesaid Supreme Court judgement. The then Secretary to government Minority Welfare Department in his letter dated 27/07/2017 sought the opinion of the Law Justice and Human Rights Department. The said department clarified that the properties which the State Government claims to have vested in the government by virtue of Inam Abolition Laws or Land Reforms Act have no juridical significance. In view of the interpretation of waqf made by Honourable Supreme Court of India in its judgement reported in AIR1998 SC 972, Law department is of the opinion that once a property held to be Waqf property, in such an event there is no scope for application of either Inam abolition Laws or land reforms Act.
The State Government in its letter no MWD118WES2017 dated 19/12/2017 directed the Karnataka State Board of Auqaf to recover the Waqf lands acquired by individuals as well as the groups and to take legal action as per the provisions of the waqf Act 1995 (Amendment) Act 2013. The Board requested the Regional Commissioners and Deputy Commissioners in the State to restore the waqf properties affected under The Inams and Land Reforms Laws. Accordingly, the Tahsildars initiated to issue notices to such grantees and noted as “Waqf Property” in the record of rights of such properties. Many of such grantees have assailed the mutations effected by the Tahsildars. The Honourable High Court of Karnataka has issued directions to the Tahsildars to issue notices, hear them and then take the decision.
Now the state government has decided not to issue any notices which is obviously against the decision of Honourable Supreme Court of India and the clarification issued by the Law Department. Lest there is serious social, political and legal implications inherent in the implementation of orders of Honourable Supreme Court. Since 1995 to date the Inamdars and tenants have sold the properties, some of the lands are converted to non-agricultural purposes, residential lay outs have come up and commercial buildings are in use. The state government has to ponder over the issue with legal luminaries, Waqf Board authorities, senior bureaucrats and social scientists and come out with an acceptable solution in the interest of lasting peace in the society.
This article is written by Mujibullah Zaffari, Former Chief Executive Officer, Karnataka State Waqf Board.
