AIR 1993 SUPREME COURT 2086
K. RAMASWAMY AND R. M. SAHAI, JJ.
Writ Petn. (C) No. 715 of 1990, D/-13-5-1993.
All India Imam Organization and others, Petitioners v. Union of India and others, Respondents.
Constitution of India, Arts. 32, 21 – Right to live – Imams, "in charge of religious activities of mosque" – Are entitled to emoluments even in absence of statutory provision in Wakf Act – Supreme Court directed the Govt. and Central Wakf Board to prepare Scheme within period of six months.
"Imam" – Is entitled to emoluments even in absence of provisions under Wakf Act.
Wakf Act (1954), Pre.
Muslim Law – Imam – Entitled to emoluments even in absence of statutory provision.
The objective and purpose of every mosque being community worship and it being the obligation of Board under the Act to ensure that the objective of the wakf is carried on, the Board cannot escape from its responsibility for proper maintenance of religious service in a mosque. To say, therefore, that the Board has no control over the mosque or Imam is not correct. Absence of any provision in the Act or the rules providing for appointment of Imam or Laying down condition of their service is probably because they are not considered as employees. At the same time, it cannot be disputed that due to change in social and economic set-up they too need sustenance. Nature of their job is such that they may be required to be present in the mosque nearly for the whole day. There may be some who may perform the duty as part of their religious observance. Still others may be ordained by the community to do so. But there are large numbers of such persons who have no other occupation or profession or service for their livelihood except doing duty as Imam.
What should be their fate? Should they be paid any remuneration and if so now much and by whom? According to the Board they are appointed by the mutawallis and, therefore, any payment by the Board was out of question. Prime facie it is not correct as the letter of appointments issued in some States are from the Board. But assuming that they are appointed by the Mutawallis the Board cannot escape from its responsibility as the mutawallis too u/s 30 of the Act are under the supervision and control of the Board. The right to life enshrined in Art. 21 means right to live with human dignity. It is too late in the day, therefore, to claim or urge that since Imams perform religious duties they are not entitled to any emoluments.
Whatever may have been the ancient concept but it has undergone change and even in the Muslim countries mosques are subsidized and the Imams are paid their, remuneration. Therefore, it cannot be said that in our set up or in absence of any statutory provision in the Wakf Act the Imams who look after the religious activities of mosques are not entitled to any remuneration. Financial difficulties of the institution cannot be above fundamental right of a citizen. If the Boards have been entrusted with the responsibility of supervising and administering the Wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque the very purpose for which it is created.
In the circumstances the Supreme Court issued the directions to the Union of India and the Central Wakf Board to prepare a Scheme within a period of six months in respect of different types of mosques. (para 5).
R. M. SAHAI, J.:- Imams, 'incharge of religious activities of the mosque' (1) have approached this Court by way of this, representatives, petition under Article 32 of the Constitution for enforcement of fundamental right against their exploitation by Wakf Boards. Relief sought is direction to Central and State Wakf Boards to treat the petitioner as employees of the Board and to pay them base wages to enable them to survive. Basis of claim is glaring disparity between the nature of work and amount of remuneration. Higher pay scale is claimed for degree holders.
2. 'Imams perform the duty of offering prayer (Namaz) for congregation in mosques. Essentially the mosque is a center of community worship where Muslims perform ritual prayers and where historically they have also gathered for political, social and cultural functions'. (2) 'The functions of the mosque is summarized by the 13th Century Jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted'. (3) 'All mosque are where Muslim men on an equalitarian basis rich or poor, noble or humble, stand in rows to perform their prayers behind the Imam'. (4) Imams are expected to look after the cleanliness of mosque, call Azans from the balcony of the minarets to the whole religious meetings and propagate the Islamic faith. They are expected to be well versed in the Shariat, the holy Quran, the Hadiths, ethics, and philosophy, social, economic and religious aspects. 'Imam or prayer leader is the most important appointee. In the early days the ruler himself filled this role; he was leader (Imam) of the government of war, and of the common Salat ("ritual prayer"). Under the Abbasids, when the caliph no longer conducted prayers on a regular basis, a paid Imam was appointed. While any prominent or learned Muslim can have the honor of leading prayers, each mosque specifically appoints a man well versed in theological matters to acts as its Imam. He is in charge of the religious activities of the mosque and it is his duty to conduct prayers five times a day in front of Mihrab'. (5)
3. On nature of the duties performed by the Imams there is no dispute. But both the Union of India and various State Wakf Boards of different States which have put in appearance in response to the notice issued by this Court have seriously disputed the manner of their appointment, right to receive any payment and absence of any relationship of master and servant. It is stated that the Imams or Muazzins are appointed by the Mutwallis. According to them the Wakf Boards have nothing to do either with their appointment or working. It is claimed that under Islamic religious practice they are not entitled to any emoluments as a matter or right as the Islamic law ordains the Imams to offer voluntary service. They are said to be paid some money out of the donations received in mosques or by the Mutwallis of the Boards. Their job is stated to be honorary and not paid. Nature of duty under Islamic Shariat is stated to lead prayers which is performed voluntarily by any suitable Muslim without any monetary benefit. Some of the affidavits claim that they are appointed by people of the locality.
The Union Government has specially stated that the Islam does not recognize the concept of priesthood as in order religions and the selection of Imams is the sole prerogative of the members of the local community or the managing committee, if any of the mosque. According to Karnataka Wakf Board Imamat in the mosque is not considered to be employment. The allegation of the petitioners that due to meager payment they are humiliated or insulted in the society is denied and it is claimed that they are respectable persons who carry on the duty of Imamat as a part of religious activity and not for earning bread and butter. The Delhi Wakf Board pointed out that the honorarium is paid to an Imam as a consideration for his five-time presence in the mosque regularly and punctually. The Board has denied any right to exercise an authority over the mosque where Imams and Muazzins are appointed by the mutawallis or by the managing committees. It is stated that holding of a certificate from a registered institution to enable a person to lead the prayer is not necessary as the only requirement for being an Imam under the Shariat is to have a thorough knowledge of the holy Quran and the rites, rules and obligations required for offering prayers according to the principles laid down by the Kuran and Sunnah.
The affidavit filed on behalf of Wakf Board has pointed out that mosque can be categorized in five categories, one which are under direct control or management of the Government such as Mecca Masjid or the mosque situated in public garden which are not governed or regulated by the Muslim Wakf Board second mosques which are under the direct management of Wakf Board; third mosques which are under the control of mutwallis under various Wakfs according to the wishes of the Wakif as the creator of the Wakf; fourth, mosques which are not registered with the Wakf Board and are managed by local inhabitants and are under the management: of the public who offer prayers regularly in a particular mosque; and fifth, mosques which are not managed by mutwallis or the Muslims of the locality.
It is claimed that Imams of fourth and fifth category are not regular and any Muslim can lead the prayers, whereas under the third category mosques are having regular Imams. Financial difficulty of the Wakf Board to meet the demand has also been pointed out. The Pondicherry Wakf Board has pointed that there is not even one employee except a peon working therein and, therefore, it is not possible to meet the demand of the Imam. It is also claimed that the board has no control over the pesh-Imams as they are considered to be well-dignified personality of the society and they are given due respect by the Muslim community as a whole.
In the counter-affidavit filed by the Punjab Wakf Board it has been stated that Imams of mosques in Punjab were being paid on basis of their qualification. Imams Nazara (Mubtali grade) are in the scale of Rs. 380-20-580-25-830-30-980, whereas Imams Hafiz (Wasti grade) are paid Rs. 445-20-645-25895-30-1045, and Imam Alim (Muntali grade) are paid Rs. 520-20-720-25-970-30-1120. They are also paid Rs. 30/- per month medical allowance and Muazzins are paid Rs 310/- per month. These scales were revised in 1992. According to them Imams of all the mosques in Punjab. Haryana and Himachal Pradesh which come under the Punjab Wakf Board are being paid regularly and they are treated as regular employees. The Sunni Central Wakf Board of Uttar Pradesh filed only a written submission stating that all the sunni mosques were managed by mutawallis of the concerned managing committees and not by the Wakf Board.
4. The mosque differs from a church or a temple in many respects. Ceremonies and service connected with marriages and birth are never performed in mosques. The rites that are important and integral functions of many churches such as confessions, penitences and confirmations do not exist in the mosques. (6) Nor any offerings are made as is common in Hindu temples. 'In Muslim countries mosques are subsidized by the States, hence no collection of money from the community is permitted. The Ministry of Wakf (Endowments) appoints the servant, preachers and readers of the Koran. Mosques in non-Muslim countries are subsidized by individuals. They are administered by their founder or by their special fund. A caretaker is appointed to keep the place clean. The Muazzin calls to prayer five times a day from the minaret. (7) In our country in 1954 Wakf Act was passed by the Parliament for better administration and supervision of Wakfs. To achieve the objective of the Act Section 9 provides for establishment of a Wakf Board the functions of which are detailed in Section 15. Sub-section (1) of it reads as under:
"(1) Subject to any rules that may be made under this Act, the (general superintendence of all wakfs in a State in relation to all matters except those which are expressly required by this Act to be dealt with by the Wakf Commissioner, shall vest) in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended:
Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law."
Clause (b) of sub-section (2) obliges the Board "to ensure that the income and other property of a wakf are applied to the objects and for the purposes for which that wakf was created or intended."
5. The Board is vested not only with supervisory and administrative power over the wakfs but even the financial power vests in it. One of its primary duties is to ensure that the income from the wakf is spent on carrying out the purpose for which wakf was created.
Mosques are wakfs and are required to be registered under the Act over which the Board exercises control Purpose of their creation is community worship. Namaz or Salat is the mandatory practice observed in every mosque. '(Among the Five Pillars (arkan; sg; rukn) of Islam it holds the second most important position immediately after the declaration of faith (shahadah)(8). The Principal functionary to undertake it is the Imam. The objective and purpose of every mosque being community worship and it being the obligation of Board under the Act to ensure that the objective of the wakf is carried on the Board cannot escape from its responsibility for proper maintenance of religious service in a mosque. To say therefore, that the Board has no control over the mosque or Imam is not correct. Absence of any provision in the Act or the rules providing for appointment of Imam or laying down condition of their service is probably because they are not considered as employees. At the same time it cannot be disputed that due to change in social and economic set-up they too need sustenance. Nature of their job is such that they may be required to be present in the mosque nearly for the whole day. There may be some who may perform the duty as part of their religious observance. Still others may be ordained by the community to do so. But there are large numbers of such persons who have no other occupation or profession or service for their livelihood except doing duty as Imam. What should be their fate? Should they be paid any remuneration and if so how much and by whom?
According to the Board they are appointed by the mutallis and there fore, any payment by the board was out of question. Prima facie it is not correct as the letter of appointments issued in some states are from the Board. But assuming that they are appointed by the mutawallis the Board cannot escape from its responsibility as the mutawallis too u/s 36 of the Act are under the supervision and control of the Board. In a series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity. It is too late in the day, therefore, to claim or urge that since Imams perform religious duties they are not entitled to any emoluments. Whatever may have been the ancient concept but it has undergone change and even in Muslim countries mosques are subsidized and the Imams are paid their remuneration.
We are, therefore, not willing to accept the submission that in our set up or in absence of any statutory provision in the Wakf Act the imams who look after the religious activities of mosques are not entitled to any remuneration. Much was argued on behalf of Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the Imams as they are being paid in the State of Punjab. It was also urged that the number of mosques is so large that it would entail heavy expenditure, which the boards of different States would not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of a citizen. If the boards have been entrusted with the responsibility of supervising and administering the Wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque the very purpose for which it is created.
6. In the circumstances we allow this petition and issue following directions:
(i) The Union of India and the Central Wakf Board will prepare a scheme we within a period of six months in respect of different types of mosques, some detail of which has been furnished in the counter affidavit filed by the Delhi Wakf Board.
(ii) Mosques which are under control of the Government shall not be governed by this order. But if their Imams are not paid any remuneration and they have no independent income. The Government may fix their emoluments on the basis as the Central Wakf Board may do for other mosques in pursuance of our order.
(iii) For other mosques, except those which are not registered with the Board of their respective States or which are not manned by members of Islamic faith the scheme shall provide for payment of remuneration to such Imams taking guidance from the scale of pay prevalent in the State of Punjab and Haryana.
(iv) The State Boards shall ascertain income of each mosque the number and nature of Imams required by it namely full time or part time.
(v) For the full time Punjab Wakf Board may be treated as a guideline. That shall also furnish guideline for payment to part time Imam.
(vi) In all those mosques where full time Imams are working they shall be paid the remuneration determined in pursuance of this order.
(vii) Part time and honorary Imam shall be paid such remuneration and allowance as is determined under the scheme.
(viii) The scheme shall also take into account those mosques which are small or are in the rural area or are such as mentioned in the affidavit of Pondicherry Board and have no source of income and find out ways and means to raise its income.
(ix) The exercise should be completed and the scheme be enforced within six months.
(x) Our order for payment to Imams shall come into operation from 1st Dec., 1993. In case the scheme is not prepared within the time allowed then it shall operate retrospectively from 1st December, 1993.
(xi) The scheme framed by the Central Wakf Board shall be implemented by every State Board.
7. The Writ petition is decided accordingly. Parties shall bear their own costs.
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