Judgment:
D.M. Dharmadhikari, C.J.
1. The petitioner is a Mutawalli of Kasaiwada Masjid Trust, Bharuch. In the State of Gujarat. By this petition, he has challenged the provisions of the Wakf Act, 1995 Act 43/94) which received the assent of the President on 22-11-1995 and it came into force in the State of Gujarat with effect from 2-12-1996.
2. The main ground of challenge to the provisions of Sections 13, 14, 32(a), 38, 61, 72 and 104 of the Act is that in the Constitution of the Wakf Board believers of Muslim faith have been divided into two broad categories 'Sunnies' and 'Shias' in their respective Wakf. The provisions of the Act have failed to recognise the fundamental differences between distinct and predominant sect of Muslims popularly known as 'Sufi Silsilas'. In this sect of Sufies are included AHLE SUNNAT -- alias SUNNI, SUFIS, DARGAHIS, BARELV1 alias KADRI, CHISTI, SOHARVARDI, NAKSHABANDI, RIFAIYA, MADAR1A. NIZAMI, SABRI, RAZVI, ASHRAFI, WARSI, etc. In the petition, this sect of Sufies Silsilas as shortly described as SSDB. For the purpose of convenience, we shall describe these Sufi Silasilas as 'Sufis', it is submitted that the Wakf Act recognises only two sects of Muslims 'Sunnies' and 'Shias' which include orthodox sect of Muslim believers known as 'Wahabis' alias Non-Dargaht, Devbandhis (described by the petitioner in short as WNDD). Sufis have not been given any recognition or representation on the Wakf Board. Learned senior counsel Mr. Beri appearing for the petitioner took great pains by placing before us books and literature to explain the difference between two broad sects, 'Sunni' and 'Shias' and other two sects viz., 1 'Sufies' and 'Wahabis'. It is submitted that Sufis are refined followers of Muslim religion, but, they observe religious ceremonies and practices not observed by Muslims of other sects. They are opposed by 'Wahbis'. The important religious ceremonies and practices of Sufies arc as follows :
(i) They respect tombs of their Saints; (ii) They spread silken, velvet or brocade covers on the tombs of their Saints;
(iii) The Saint believers make offerings for their Saints to fulfil their vows and for fulfillment of their needs ;
(iv) They fix a date according to the lunar calendar for the Urs of the Saints for pilgrimage at their tombs and even organise 'Mehfils' or 'Qawallies' (Sama) at the shrines or tombs;
(v) On certain date, the believers decor and adorn tombs. They also build and decorate Taziyas in the days of Ashura in the month of Muharram and procession is taken out;
(vi) Some time, they erect coloured flag on fixed days and dates of different Saints;
(vii) On various dates, they arrange sandal, pasting on the tombs and use this sandal paste asTabarruk (Prasad);
(viii) At tombs or Dargahs, Langars are organised for distributing food to the devotees and poor;
(ix) The believers seek help of Saints by uttering 'YA RASULALLAH', 'YA ALI', 'YA GHOUS'. 'YA KHWAJA', 'YA HUSSAIN', 'YA PIR ALMADAD';
(x) Some times, Natiya Mushairas are organised in praise of the prophet of Islam at various Durgahs;
(xi) The believers repeat the names of their Saints in order to realise and inculcate the love of Allah through reverence and love of the Saints;
(xii) They feed the animals and birds in the name of their Saints;
(xiil) Some times, Imabraras are constructed which are called Tazia Khana;
(xiv) Sweets are distributed at the tombs and Tazlas;
(xv) Perfume is sprinkled on the tomb and they are kissed and touched;
(xvi) Believers appoint Wakeels and intercessors i.e. Shafi and respect them as mediators between themselves and the Saints;
(xvii) They arrange Mehfil Milad to celebrate the birth of their Prophet Mohammed and at the end of this function, recite Salato Salam in the standing position;
(xviii) Dargahs are illuminated on the date of birth of the prophet;
(xix) Make 'Murids' and prepare them for love of Allah, through the escoteric practices of 'Zikr' and Tasawware Shikh, that is --through Ishk-e-Majazi for Ishk-e-Haqiqi.
3. It is submitted that the above mentioned rituals and practices prevailing in 'Suffis' are integral part of their sect.
4. The other sect known as 'Wahabis' consider the aforesaid rituals as against the Holy Quran and ridicule them as practices parallel to the Hindu rituals and condemn them as opposed to original Muslim faith.
5. In a separate compilation filed on behalf of the petitioner, certain newspaper cuttings have been supplied to the Court showing that there had been several instances of violence between Sufles and Wahabis and thus communal clashes frequently take place because Wahabis oppose and condemn the religious practices and rituals observed by Sufles. It is submitted that this antagonism between Sufles and Wahabis is a matter of constant conflict and communal clash. It is submitted that composition of Wakf Board under Section 14 of the Act gives no representation to Sufles. Representation has been given to Muslims on their broad categorisation as Shias and Sunnls. Submission made is that since Sufi is a different sect, with different religious practices and rituals, they should be provided with separate Board of Wakf. In the absence of separate Board of Wakf for them, there is there is likelihood of infringement of their constitutional right of practice of their faith and protection of their 'freedom of conscience'. The present constitution of the Wakf Board with no representation to them poses a serious threat to the Wakfs belonging to Sufi sect of Muslim. The Act thus is violatlve of Articles 25 and 26 of the Constitution of India, From the contents of the provisions of Section 13 of the Act, it is pointed out that due to non-recognition of distinction between 'Sufis' and 'Wahabis'. In the Wakf Board there is a possibility of domination of 'Wahabis'. That will cause serious threat to the observance of rituals and practices of 'Sufis'. It si submitted that under the provisions of the Act, due to non-recognition of 'Sufles' who are opposed by 'Wahabis', Sufi Wakfs are clubbed together under the broad heading of Sunni Wakf. This would be creating a situation where Sufies may not be able to protect their fundamental rights guarnateed to them under Articles 25 and 26 of the Constitution of India. The prayer made in the petition is to strike down the provisions of the Act by declaring them as unconstitutional and violative of Articles 25 and 26 of the Constitution. The alternate prayer made as to direct the Union of India and State of Gujarat to constitute a separate Wakf Board for Sufi sect of Muslims.
6. On behalf of the petitioner, heavy reliance has been placed, in support of their submissions, on :
(i) : 1950CriLJ1514 ;
(ii) : [1954]1SCR1055 ;
(iii) : AIR1954Cal241 ;
(vi) : 1983CriLJ1872 ;
(v) AIR 1981 SC 2138.
For the purpose of this petition, it is to some extent necessary to go into the literature produced before us to point out the distinction between different Muslim sects like 'Sunni', 'Sufi' and 'Wahabi'. It is not disputed that all the four sects are believers in Islam. Islam believes in monotheism. Islam asserts that God has created the universe. He does not assume human form and is free from all human needs and imperfections. He is one Invisible, Eternal, Indivisible, Beneficent, Almighty, Omnipresent, and All knowing. Belief in the Unity of God as the essential requirement for a Muslim. It abolished priesthood and monasticism. It placed reason and common sense above obscurantism and mysteries. It emphasised the unity of mankind and abolished the false barriers of race, tribe, caste and Introduced the spirit of brotherhood and discipline. A Muslim must have belief in faith described as Iman-i-Mujmil and Iman-i-Muffassal. The former is a simple expression of faith in the teaching of the Quran and the Hadis. The latter implies belief in the six articles, that is, (1) Unity of God, (2) The Angels, (3) The Quran, (4) The Prophets, (5) The Day of Judgment, (6) Predestination or the Decrees of God: four angles, namely (i) Jibrail (Gabrial), (ii) Michail (Micheal), (iii) Israfil and (iv) Azrail.
Principles of Philosophy of Sufism :
7. Learned counsel referred to the Dictionary of Islam to point out the literary meaning of the word, 'Sufi,' which is derived from Persian form of the plural word, being 'Sufiyan,' as a man of people, who professes the mystic principles of Tassawwuf. It is said to have been derived from Arabic Suf (Wool) on account of the woollen dress worn by Eastern ascetics or from the Arabic Safu (purity). The learned author, B. N. Luniya, in Life and Culture in Medieval India explains this sect in better way thus :
The Sufis were called Sufis because of the purity (safa) of their hearts and the cleanliness of their acts (athar). The Sufi is he whose heart is sincere (safe) towards God :'
A Sufi is dead to his self-will. He gives up unlawful carnal pleasure. He neither wants nor has desire, nor yearns for anything. He is dead to his self but alive in God. The aim of Sufi -- life is God alone. He loves God. His thinking, meditation and prayer are for God alone. He is ever ignorant of everything except God and when he thinks of God alone, his mind is purified. He feels the immediate presence of God within (yaft) and series the presence of God without (shuhud). His knowledge and actions are guided by God alone.
8. It is not disputed that belief and faith of Sufi is akin to Muslim faith. In his work, 'Suffism' and Islam, Al-Haji Mulla Bashir Rahim, resident Alim of Wessex Jammat, Hampshire. U.K. writes :
'Sufism and Islam cannot be separated in the same way that higher consciousness or awakening cannot be separated from Islam. Islam is not an historical phenomenon that began 1,400 years ago. It is the timeless art of awakening by means of submission. Sufism is the heart of Islam: it is as ancident as the rise of human consciousness.
Many scholars and jurists may join issue with the above statement. They perceive sufism as an unacceptable distortion of Islamic beliefs and way of life. They find the rituals and practices as well as the beliefs of many Sufis repugnant to the teachings of Islam. They argue that sufism has brought about a confusion in the minds of its believers leading them away from the simplicity and purity of the glorious fatth.'
The author then deals with other belief of orientalists which link sufism with Christianity. In India, even Hindus visit tombs and shrines of sufies. In the book of 'Sufism' by Carl W. Ernst, Ph.D. (which is handed over to the Court on behalf of the petitioner), the following statement in its Preface finds place ;
'The term 'sufism' has a complicated history which will be explored in the opening chapter of this book. Like Islam, the term Suflsm was introduced to European languages by Orientalists, but the two terms were believed to be essentially different. Premodern Muslim societies knew no such distinction. For them, the multifarious activities that we subsume under the terms Suflsm and Islam were not spheres of existence separate or separable from religious life in general. It would not have been possible to formulate the statement 'Sufism' as nothing to do with Islam prior to the nineteenth century.'
9. Since the provisions of the Central Act are under challenge, we issued a separate notice to the Attorney General of India in accordance with the High Court practice. It is very surprising that despite repeated opportunities to the respondents, no reply-affidavit or return has been filed in a case with an important subject of general interest like the present one. The learned standing counsel for the Union of India, Mr. Asim Pandya, appeared and argued on behalf of the Union of India, but, without filing any reply-affidavit, sworn by any authorised officer of the Union of India. The Court was, in fact, interested to know whether any survey of Muslim population was made before bringing into force new Wakf Act, 1995 and the objects and reasons for recognition of Muslims in broadly two sects only, i.e. Sunni and Shia.
10. Since the subject involved is on Muslim religion and Philosophy, apart from taking assistance of literature provided by the counsel, on our request, Muslim lawyer. Mr. M. I. Merchant, appeared as Amicus Curiae and we thankfully acknowledge his assistance given to the Court.
11. Before understanding the sect of 'Wahabis.' who are said to be strong opponents of Sufies, it is necessary to understand the distinction between the main sects of Muslims, i.e. Shia and Sunni. In the New Encyclopedia Britannica, Vol. 22, two sects of Muslims, Shia and Sunni have been explained.
'Theology and sectarianism :
Despite the notion of a unified and consolidated community, as taught by the prophet, serious differences arose within the Muslim community immediately after his deat. According to Sunnah, or traditionalist faction who now constitute the majority of Islam -- the Prophet had designated no successor. Thus, the Muslims at Medina decided to elect a separate chief. Because he would not have been accepted by the Quraysh, the Uinmah, or Muslim community, would have disintegrated. Therefore, two of Muhammad's father-in-law, who were highly respected early converts as well as trusted lieutenants, prevailed upon the Medinans to elect a single leader, and the choice fell upon Abu Bakr, father of the Prophet's favoured wife, 'A' ishah. All of this occurred before the Prophet's burial (under the floor of 'A' ishah's but, along side the courtyard of the mosque).
According to Shiah, or 'Partisans' of Ali, the Prophet had designated as his successor his son in law, All Ibn Abi Talib; husband of his daughter, Fatimah and father of his only surviving grand sons. Hasan and Husayn. His preference was general knowledge; yet, while Ali and the Prophet's closest kinsmen were preparing the body for burial. Abu Bakr, Umar and Abu Ubaydah from Muhammad's Companions in the Quraysh tribe, met with the leaders of the Medinans and agreed to elect the aging Abu Bakr as the successor of the Prophet. Ali and his kinsmen were dismayed but agreed for the sake of unity to accept the fait accompli because Ali was still young.'
12. From the Dictionary of Islam, what we understand about the sect of Wahabi is that it is a sect of Muslim revivalists founded by Muhammed, son of Abu's Wahhab, but as their opponents could not call them Muhammadans, they have been distinguished by the name of the father of the founder of their sect and are called Wahhabis. The Wahhabis speak of themselves as Muwahhid or 'Unitarians' and call all other Mushrik. The following are some of their religious tenets :
1. They do not receive the decisions of the four orthodix sects, but say that any man who can read and understand, the Quran and the sacred Hadis can judge for himself in matters of doctrine. They, therefore, reject Ijma after the death of the companions of the prophet.
2. That no one but God can know the secrets of men and that prayers should not be offered to any prophet, wali, pir or saint; but that God may be asked to grant a petition for the sake of saint.
3. That at the last day, Muhammad will obtain permission of God to intercede for his people. The Sunnis believe that permission has already been given.
4. That it is unlawful to illuminate the shrine of departed saints, or to prostrate before them, or to perambulate round them, they do not even perform any act of reverence at the Prophet's tomb or at Madinah.
5. That women should not be allowed to visit the graves of the dead, on account of their immoderate weeping.
6. That only four festivals ought to be observed, namely, Idu i Fatr, Idu i Asha, Ashura and al-Lailatu 1-Mubarakah.
7. They do not observe the ceremonies of Maulad which are celebrated on the anniversary of Muhammad's birth.
8. They do not present offerings at any shrine,
9. They count the ninety nine names of God on their fingers and not on a rosary.'
13. In a review of works of Ibn-Al Arabi, a statement finds place thus :
'It is well established among Muslem communities that suffism is in essence nothing other than Shiism which has hidden its political dimension in order to be able to survive among the main stream Muslem community. Any one familiar with Shii religious beliefs and their philosophy would come to know a kinship and parallelism between suffism and shilsm. This is particularly evident in the writing of Ibn Al Arabi which explains why his writings are so much more popular with shia people than the rest of Muslems.'
14. No case is set up by the petitioner that there is any antagonism between Sufies, Shias and Sunnis, Seyyed Husein Nasr in the preface to Tabatabai's work entitled SHI 'A,' page 15, published by Ansariyan Publications of Qum, Iran, writes as under:
The early leaders of Islam, especially the Shia Imams and their close followers, led a highly spiritual life and exposed spiritual ideas in the context of Islam through supplications, lectures and other writings. They were not, however, mystics or sufis as those terms later came to be understood. During the first century of the Islamic era there did not exist any group known as Gnostic or sufis. Those who led spiritual life did so out of unbounded piety. Having traversed through comprehension of the formal and philosophical aspects of the faith they sought to unveil the Truth through intellectual reasoning. They neither renounced the world nor assumed any formal identity. Their teachings often attracted adherents from the Sunni schools of thought with the result that it is not uncommon today to find Sufi groups aligned with the Sunni school and yet acknowledging Shiah leaders as their spiritual masters. Notable among such groups is the Naqshabandi order.'
15. Wahabl which is a distinct sect of Muslims from Shia and Sunni constitutes orthodox sect which disagree and oppose rituals and practices of sufies.
16. What we understand from the literature made available to us is that there is absolutely no antagonism between Sunni. Shia and Sufi. Only small sects of Wahabis are opponents of sufism. In reality, Sufi faith and their missionary activities have reached all spheres of people of India including Hindus. The importance of sufism is in its spiritual education and in inculcation and fulfilment of its faith. Sufi shrines and tombs are visited not only by Muslims of all sects and Sub-sects, but, also by Hindus.
17. Coming back now to the challenges made to the provisions of the Act, the principal submission is that in the entire Act of 1995, there is no recognition to sufies, no mention of tomb. Dargah or Khanqah or Takiya all of which are Wakf institutions of Sufies. There are large numbers of Sufi wakfs throughout India. In Bharuch District itself, there are 629 Sufi Wakfs as against only 315 Wakfs of Wahabi, 17 of Shias and 126 other non-classified Wakfs. By broad classification of Wakfs into Shia and Sunni, the Act does not provide any safeguards and protections of rituals and religious practices of Sufies and their trusts. Non-recognition of Sufi and Sufi Wakfs, denies them their right to manage and administer their institutions. Their fundamental rights under Articles 25 and 26 of the Constitution of India are thus infringed.
18. Turning now to the relevant provisions of the Act, we find that Section 13 empowers the State Government by a notification in the Official Gazette to establish a Board of Wakf for the State. Sub-section (2) of Section 13 which is relevant and recognises broad classification of Wakfs between Sunni and Shia reads as under :
'(2) Notwithstanding anything contained in Sub-section (1), if the Shia Wakfs in any State constitute a number more than 15 per cent, of all the Wakfs in the State or if the income of the properties of the Shia Wakf in the State constitute more than 15 per cent, of the total income of properties of all Wakfs in the State, the State Government may, by notification in the Official Gazette, establish a Board of Wakfs each for Suni Wakfs and for Shia Wakfs under such names as may be specified in the notification.'
Section 14 of the Act provides the composition of the Wakf Board. The whole of Section 14 needs to be reproduced :
'14. (1) The Board for a State and the Union territory of Delhi shall consist of--
(a) a Chairperson.
(b) One and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of--
(i) Muslim members of Parliament from the State, or as the case may be, the Union Territory of Delhi.
(ii) Muslim members of the State Legislature.
(iii) Muslim members of the Bar Council of the State and
(iv) Mutawallis of the Wakfs having an annual income of Rs. 1 lakh and above;
(c) One and not more than two members to be nominated by the State Government representing eminent Muslim organisations;
(d) One and not more than two members to be nominated by the State Government each from recognised scholars in Islamic theology;
(e) An officer of the State Government not below the rank of Deputy Secretary.
(2) Election of the members specified in Clause (b) of Sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed.
Provided that where the number of Muslim members of the 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 Sub-clauses (i) to (iii) of Clause (b) of Sub-section (1), the ex-Muslim member of Parliament, the State Government or ex-member of the State Bar Council shall constitute the electoral college. (3) Notwithstanding anything contained in this section, where the State Government is satisfied, for reasons to be recorded in writing that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in Sub-clauses (i) to (iii) of Clause (b) of Sub-section (1), the State Government may nominate such persons as the members of the Board as it deems fit.
(4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided under Sub-section (3).
(5) Where there are Shia Wakfs but no separate Shia Wakf Board exists, at least one of the members from the categories listed in Sub-section (1) shall be a Shia Muslim.
(6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Sia wakfs and Sunni Wakfs to be administered by the Board and appointment of the members shall be made so far as may be, in accordance with such determination.
(7) In the case of the Union Territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in Sub-section (1) :
Provided that there shall be one Mutawalli as the member of the Board; (8) Whenever the Board is constituted or reconstituted, the Members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board.
(9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette.'
Under Section 32 are provided powers and functions of the Board which amongst others, include ensuring that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were intended or created. The Board is empowered to give directions for the administration of wakfs, to settle scheme of management for a wakf. The explanation below Sub-section (2) provides that powers of the Board shall be exercised in the case of a Sunni Wakf by the Sunni members of the Board only and in the case of Shia Wakf by the Shia members of the Board only.
Provisions like Sub-section (1) of Section 32 have been highlighted on behalf of the petitioner stating that it confers extraordinary powers on the Wakf Board. It can insist on the Wakf that suitable land in its potential ownership and possession be utilised for development of shopping complex, market, housing flats, etc., and on failure of the wakf get the work executed.
19. Article 25 of the Constitution guarantees 'freedom of conscience' and 'right to freely profess, practise and propagate religion.' Clause (2) of Article 25 enables the State to frame any law regulating or restricting any economic, financial, political or other secular activities which may be associated with any religious practices. Article 25(1) and (2) guarantee protection against encroachment by the State on citizen's right of 'freedom of conscience,' and 'right to freely profess, practise and propagate religion;' but State can by law, regulate economic, financial, political and secular activities associated with any religious practice. It is for the purpose of regulating 'secular activities' as permitted in Clause (2) of Article 25 of the Constitution that Wakf Act of 1985 has been enacted by the Parliament. We find no difficulty in accepting the submission made on behalf of the petitioner that Articles 25 and 26 of the Constitution of India guarantee right to practise and propagate not only every kind of faith or religion of people but also any 'rituals and observances' which are Integral part of faith or religion by the followers of a particular doctrine, (see : 1977CriLJ551 . Article 26 of the Constitution guarantees to every religious denomination or any section thereof, right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to administer for such purposes any movable or immovable property but in accordance with law.
20. The main grievance and ground of challenge raised on behalf of the Sufis is that their non-recognition by the Wakf Act and omission to give them representation in the Wakf Board is a threat to their fundamental rights under Articles 25 and 26 of the Constitution of India. We find it difficult to accept such challenge based on Articles 25 and 26. Non-recognition of any religious faith or doctrine and omission to give them representation does not directly deny 'freedom of conscience,' or 'right to profess, practise and propagate religion' guaranteed by Art. 25. It also does not deny freedom to manage and administer its religious property guaranteed under Article 26. The provisions of Wakf Act nowhere make any attempt to interfere with the religious activities of any faith or religion. There is, therefore, no violation of Article 25 of the Constitution. Mere non-recognition of the sect of Sufies in composition of Wakf Board, and omission to give representation to them in any other manner under the provisions of the Act, do not directly or indirectly Infringe any right of Sufi Wakt's under Article 26 of the Constitution to establish and maintain institution for religious and charitable purposes or to manage their own affairs in the matter of religion,
21. The entire foundation of the petition appears to be on an apprehension that small sect of 'Wahabls,' who are orthodox Muslims and opposed to Sufies might get entry in the Wakf Board and that would then create a situation whereby fundamantal rights of Sufies in the matter of management and administration of their wakfs would be adversely affected.
22. The Wakf Act does not give representation on Board to Sufies or to 'Wahabis.' Both these sects are included in the broad categorisation of Muslims in Sunnls and Shias. In the presence of Shias and Sunnis in the Wakf Board, there is no apprehension even remotest that observance of practices and rituals of Sufies in their wakfs, would get disturbed or there would be no protection to them merely because Sufies have not been given representation on the Wakf Board. As we have found from the sociological survey contained in Muslim religious literature, Shia and Sunni Muslims, both have faith and equal reverence for Sufi religious establishments. In any event, they are not at all opposed to any of the rituals and practices of the Sufies. Only orthodox sects of Wahabis are said to be strong opponents of Sufies. But, 'Wahabis' are also included in broad categories of Muslims, 'Shias' and 'Sunnis' under the Act. Wahabis also have not independently been given any recognition or right of representation on Wakf Board. Mere likelihood of their presence in Wakf Board can have no such delirious effect as to enable them to interfere with internal religious affairs of the Sufies. The Act itself aims at only regulating the 'Secular affairs' of the Wakfs and religious affairs are to be left untouched by the various authorities of the Act. The presence of Shia and Sunni Muslims not belonging to Wahabi sect together with various elected and nominated members ex-officio on the Wakf Board would have greater controlling effect on the deliberations and resolutions of the Board to dispel all doubts of alleged infringement of any religious rights of Sufies.
The apprehension of Sufies is mere imagination and outcome of some past clashes between Wahabls and Sufies.
23. It is for the Central or State Legislature to consider and decide whether representation on the Wakf Board should be given to Sufies and Wahabis or not. Mere non-recognition of a sect of Muslim in the provisions of the Wakf Act does not constitute any infringement or threat to the fundamental rights guaranteed to all sects of Muslims under Articles 25 and 26 of the Constitution. What we find from the composition of Wakf Board as provided under Section 14 of the Act is that it comprises elected members from both Houses of Parliament and State Legislature, Bar Council. Private Muslim Organisations, nominees of the State Government and recognised scholars in Islamic theology. The composition of the Board is such that there is hardly any possibility of few Wahabis, who are likely to be there on the Board from amongst Muslim community, to be able to dominate the Board or in any manner act against the interest of Sufi Wakfs. In a given situation, if any adverse action or threat is faced by Sufi Wakfs, that may be a separate subject-matter of challenge. A similar argument based on apprehension was rejected by the Supreme Court in the case arising from the provisions of Punjab Sikh Gurudwara Act. At the time when erstwhile State of Pepsu was merged with Punjab, the above Act was passed to give representation in the Board of Gurudwara to Sikh devotees of Pepsu area. They were inducted as members on the Board of Gurudwara. Similar argument was advanced that the Board may consist of Sikhs elected by non-Sikhs and would thus infringe the constitutional guarantee to Sikh Gurudwaras under Articles 25 and 26 of the Constitution. In repelling the above contentions, the Supreme Court in the case of Sarup Singh v. State of Punjab AIR 1959 SC 860, held thus :
'12. With regard to the thirty five Sikhs to be elected under Clause (b) of Sub-section (1) of Section 148-B, there is a three fold contention. It has been submitted that (1) the electorate detailed in Sub-section (2) of Section 148-B is not representative of the electorate like Sikh members of Parliament and Municipal Committees are in their turn elected by joint constituencies of Sikh and non-Sikhs; and (3) some of the members of the electorate like Sikh Sarpanchas and Sikh Nyaya Pradhans are in the service, and under the influence of Government. We do not agree that these considerations are determinative of the problem before us. We have already said that the method of representation to the Board for the extended areas as an interim measure is not a matter of religion. The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non-Sikhs is far too remote and indirect to constitute an infringement of freedom of religion. The members of the electorate itself are all Sikhs and they have to elect thirty five Sikhs. Unless one proceeds mechanically on mere abstract considerations, there is no real basis for the contention that non-Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanchas and Nyaya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikh under Article 26(b) of the Constitution. It may not be quite irrelevant to point out here that the twelve members of the Interim Gurudwara Board. Patlala plus thirty five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty five co-opted members of the Board.'
In another case, a similar argument based merely on apprehension of infringement of Articles 25 and 26 of the Constitution was rejected by the Supreme Court in the case of Mahant Moti Das v. S. P. Sahi, AIR 1959 SC 942, thus :
'It cannot be said that the power to alter or modify the budget relating to religious trust or the power to give directions to a trustee may be exercised by the Board in such a way as to affect the due observance of religious practices in a math or temple so as to constitute an encroachment on the right guaranteed under Article 25. The power to alter the budget is subject to Clause (6) of Section 60 of the Act and the Board is not authorised to alter or modify the budget in a manner or to an extent inconsistent with the wishes of the founder or with the provisions of the Act, The power to give directions to the trustees is also subject to a similar restriction, namely, the directions must be for the proper administration of the religious trust in accordance with the law governing such trust and the wishes of the founder Insofar as such wishes can be ascertained and are not repugnant to such law. The keynote of all the relevant provisions of the Act is-the due observance of the objects of the religious trust and not its breach or violation. Secondly, an apprehension that the powers conferred may be abused in individual cases does not make the provision itself bad or invalid in law.'
(Underlining emphasised)
24. So far as other provisions of the Act contained in Section 32 are concerned, there, is no proper foundation in the petition for corning to the conclusion that the power of the Wakf Board is likely to be exercised in a manner as would infringe fundamental rights of Sufies in managing their Wakfs guaranteed under Articles 25 and 26 of the Constitution. There is no occasion for challenging the said provisions. The provisions contained in Section 32(4) enable the Wakf Board to find out and give effect to the feasibility of development of shopping center, market, housing flats, etc.. after giving due opportunity to the Wakf. After considering their views only, such an action is contemplated. The property so developed would be an accretion to the property of the Wakf. There is even no prima facie ground made out to assail the provisions contained in Section 32(4).
25. We, therefore, find no ground or justification to strike down the Act or any section thereof.
26. So far as alternative prayer made for directing the Government to provide separate Board for Sufis under the Act is concerned, in our opinion, it is a matter for the Legislature to take into consideration. We have given, in brief, the concept of Sufism and faith of Sufies. Believers in Sufism are from all communities including Hindus. It may be found necessary by the Legislature to better protect and maintain Sufi Wakfs by giving them separate Board or representation on the existing Wakf Boards to remove from their minds, any kind of apprehension or fear and from orthodox sects of Muslim community.
27. Before concluding, we consider it necessary to record certain observations. Although the petitioner has failed to make out any case for striking down provisions of the Wakf Act, the subject was of sufficient general public Importance. Special Notice to the Attorney General was, therefore, given. It was not responded to and no reply-affidavit or instructions were received. We tried to ascertain from the standing counsel of the Union of India the procedure adopted in the Government for representing it in such a case. We are not aware whether such notices sent to the Attorney General in each case are actually placed before the Attorney General of India so that he may apply his mind and take decision whether to contest or not and/or in what manner to assist the Court. If such procedure does not exist, it is high time that it should be now introduced. It is necessary for the Government to formulate a procedure so that invariably in every case where Central or State legislation is challenged, the matter may be brought to the notice of the Attorney General or the Advocate General and timely decision is taken to contest or assist the Court in the best manner possible. This appears to us to be necessary in public interest and in tune with the constitutional set up.
As a result of the reasons discussed above, the petition fails and is hereby dismissed with the above observations. In the circumstances, we make no order as to costs.