Abstract
This research paper critically explores the constitutional legality of the Waqf Act, of 1954, which is a key piece of legislation in India that governs and administers waqf holdings. The study’s goal is to assess the Act’s conformity with the basic rights guaranteed in the Indian Constitution. The key sections of the 1954 Waqf Act are examined, with an emphasis on their consistency with constitutional concepts like equality, secularism, and the right to religious freedom. The research findings are related to the continuing debate in India over the legal structure that governs waqf holdings.
Keywords
waqf, waqf act, waqf board, waqf property, religious endowments
Introduction
A Public Interest Litigation was filed in the Delhi High Court challenging the constitutional validity of several sections of the Waqf Act 1995, which state that these provisions grant special status to Waqf properties while denying equal status to Trusts, Mutts, Akharas, and Societies. Parliament originally established the Waqf Act in 1954. It was later repealed, and a new Waqf Act was approved in 1995, giving Waqf Boards additional authority. This Act was further revised in 2013 to give Waqf Boards the limitless authority to seize anyone’s property, which could not be contested in any court of law. Using this provision, Congress handed 123 prominent properties in Delhi to the Delhi Waqf Board in March 2014, right before the Lok Sabha elections began. Thousands of acres of Hindu land have been taken away throughout the country as a result of this dark law. Recently, the Tamil Nadu Waqf Board declared six Tamil Nadu villages, including a 1500-year-old Hindu temple, as Waqf property. How’s that even possible? The Waqf Board has unrestricted authority to seize property in the cause of Muslim charity. But, to understand how it got this correct, we must travel back in time.
Research Methodology
This study is descriptive in style, and the research is based on secondary sources to provide a thorough examination of the waqf legislation, its history, and its constitutional legitimacy. For the study, secondary sources such as newspapers, journals, and websites are employed.
Literature review
To understand the present dynamics of Waqf in India, it is crucial to examine its historical background. Scholarly works by historians such as A. A. Engineer (1994) and M. Athar Ali (1984) provide insights into the development, functioning, and governance of Waqf institutions in medieval and pre-colonial India. These works highlight the positive contributions of Waqf in fostering education, healthcare, and social welfare during that period, laying the foundation for a comprehensive understanding of the subject.
The legal framework surrounding Waqf in India is a key area of discussion. Scholars like M. Moniruzzaman (2011) have analyzed the legal framework governing Waqf, such as the Waqf Act of 1995, and examined the challenges faced in its implementation. Additionally, studies by K. K. Muhammed (2004) and K. S. Rao (2006) delve into the governance structures of Waqf institutions, discussing issues of mismanagement, corruption, and lack of transparency that have plagued the system.
The compatibility of Waqf institutions with the secular fabric of India has been a subject of debate. Authors such as A. K. Pramanik (2016) argue that the preferential treatment of religious endowments, including Waqf, contradicts the principles of secularism enshrined in the Indian Constitution. They highlight concerns related to the allocation of Waqf properties and resources, questioning the equal treatment of all citizens under the law. On the other hand, scholars like R. Bhargava (2008) emphasize the importance of recognizing and respecting religious diversity within a secular framework, advocating for a balanced approach that addresses the concerns of both the secular state and religious communities.
To address the challenges and controversies surrounding Waqf in India, several scholars have proposed reforms and policy recommendations. Works by S. Alam (2019) and S. Khan (2015) examine the need for institutional reforms, legal amendments, and transparent governance mechanisms to ensure the proper administration and utilization of Waqf properties. They stress the importance of stakeholder engagement, community participation, and capacity building for effective implementation of reforms.
The waqf act in the secular country
In truth, Hindus who moved to India after partition from Pakistan had their possessions in Pakistan seized by Muslims and the Pakistani government. However, the Indian government awarded the Waqf Boards the land of Muslims who moved from India to Pakistan. Following that, in 1954, the Waqf Board Act was enacted. However, by amending the Waqf Board Act in 1995, the Waqf Boards were granted limitless property acquisition privileges. Following it, the Waqf Board’s property rose.
There are no such organisations for Hindus, Sikhs, or Christians. The Sikh Gurudwara Act, of 1925, only governs the management of Gurudwaras, not an entire type of property. The Religious Endowments Act 1863, Indian Trusts Act 1882, and various state legislations, such as the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, continue to govern Hindu temples and religious organisations.
According to the Waqf Management System of India, there are currently 8,54,509 properties with Waqf Boards scattered across more than eight lakh acres of land. Surprisingly, the Waqf Boards own most of the land after the Army and Railways.
The Waqf Board’s possessions were scattered across four lakh acres of land in 2009. That figure has already more than doubled. Whereas the land in the nation remains the same. So, how is the land of the Waqf Board expanding? Wherever the Waqf Board constructs the cemetery’s border wall in the nation, it considers the surrounding area to be its property. Similarly, the Waqf Board eventually declares unlawful shrines and mosques to be their property. In layman’s terms, this is referred to as encroachment, and the Waqf Board owns the right to it.
The Waqf Act of 1954 was updated in 1964, 1969, and 1984; a significant change in 1995 would have sufficed. Regarding the Waqf Tribunal, the new Act introduced a tribunal and perhaps harmful innovation. The tribunal has broad powers to resolve topics relevant to properties contested to be waqf properties and interests involved in a property allowed to be a waqf property, lease, tenancy, and so on in a waqf property. The state governments will define the exact scope of this court’s authority. The tribunal is staffed by judicial service officers, state civil service people, and one individual with a particular understanding of Muslim law. The civil court lacks jurisdiction over problems covered by the Waqf Act of 1995. Worryingly, the appeal is not allowed from this tribunal’s ruling or any temporary order issued by the tribunal. This tribunal is not the Shariat court of the Qazi or the Sadr, but it is the closest secular counterpart. Unlike a civil court, which is concerned with justice, the tribunal is concerned with the protection and better administration of the auqaf; in other words, this tribunal is biased in favour of waqf. As a result, it is significantly more difficult for innocent third parties to assert their legitimate interests before this tribunal than in a civil court.
Section 85 of the Waqf Act stipulates that if you cannot prove to the Waqf Board Tribunal that you possess the property, you will be obliged to abandon it. The Tribunal’s ruling will be final. No court, not even the Supreme Court, may overturn the Waqf Tribunal’s ruling.
Section 40 of the Waqf Act stipulates that when the Waqf Board claims a person’s land, it is not the Waqf Board’s job to substantiate the claim on the land; rather, the genuine owner of the land must show possession of his land.
Section 40(3) has the effect of allowing the Board, which includes only Muslim members, to declare any property belonging to Hindu or any other non-Islamic religious group as Waqf property. This clause is discriminatory under Articles 14 and 15 of the Indian Constitution and infringes on Hindus’ freedom of religion under Articles 25 and 26 of the Indian Constitution.
Invoking Sections 4 and 5 of the Act, the Survey Commissioner can include any property as waqf property under the Act. According to the petition, there are no balances on the Survey Commissioner’s authority, and no provision is made for providing members of the general public with an opportunity to hear about the inclusion or removal of any property from the list of waqf.
How is religious legislation, such as the Waqf Act, made relevant in a secular country like India? Why isn’t there a similar act for Hindus, Christians, and Sikhs? Why is it exclusively for Muslims? The irony is that in 1991, the Places of Worship Act was passed, which states that religious places that existed at the time of the country’s independence shall be preserved in their current form. Simultaneously, in 1995, the Waqf Act enters into force, granting the Waqf Board the power to assert its rights on any property in the country, and the aggrieved party is barred from appealing in any court in the country.
A welfare state controlling religious Waqf holdings is a blatant violation of the Constitution’s design, including Articles 14, 15, and 21 of the Constitution, as well as the Preamble.
The Waqf Act of 1995 has various requirements for administering waqf properties, however, there are no comparable regulations for adherents of Hinduism, Buddhism, Jainism, Sikhism, Judaism, Bahaism, Zoroastrianism, and Christianity. As a result, it violates the nation’s secularism, unity, and integrity. The Waqf is never mentioned in the Constitution.
By Articles 14-15, the State should adopt only Uniform legislation for Trust-Trustees, Charities-Charitable Institutions, and Religious Endowments-Institutions as mentioned in Items 10 and 28 of List III, Seventh Schedule, and cannot make separate legislation for Waqf and Waqf properties.
Conclusion and recommendation
The institution of waqf is not required by law. However, it should be underlined that in a secular democracy, only a logical legal system serves the general interest and does not function as a mere “identity marker.” The current state of waqf legislation endangers public peace and community harmony, breaches individual property rights, and may support radical politics. If the question arises will the striking down of the waqf act subdue the voices and rights of minority Muslims, from my point of view first of all we should stop calling Muslims minorities, they are the second largest majority of this country, the actual minorities of this countries are Parsis, Jains, Buddhists, Sikhs etc. but there are no such laws for these communities. If we want to give a platform to minorities to uplift themselves then there should be uniformity in the law. This type of provision should be for all minority communities, not for only one community, to control their religious properties.
It’s shocking to learn that such an act exists in a secular country but not in any Muslim one. Turkey, Libya, Egypt, Sudan, Lebanon, Syria, Jordan, and Iraq are Muslim nations that do not have a Waqf Board or a Waqf Law. Waqf Act should be prohibited in India as well. The Waqf Act should be repealed since it is manifestly unlawful.
As it stands now, the Waqf Act of 1995 violates Article 14’s right to equality by creating a separate system of procedural and substantive protection for a class of assets and religious facilities of one group to the exclusion of all others.
A complete repeal may take some time. Meanwhile, a variety of solutions must be investigated urgently. The first is to abolish the tribunal’s exceptional authority and restore the power of the civil court. Second, substantial third-party rights protection must be integrated into the waqf registration process. An Ombudsman may be appointed to defend the rights of third parties in waqf. Third, the prohibition on acquiring waqf land for public use may be lifted. Finally, the Waqf Board must be barred from claiming any waqf that existed before the 1995 Act and was not registered at the time it was enacted. This would prohibit the Board from placing unreasonable demands on historical sites and government structures. It can also be understood through the perspective of Article 44, which requires the state to create a Uniform Civil Code for all localities. The discussion of UCC should go beyond personal laws and encompass waqf as well. In an ideal world, the Waqf Act of 1995 would be abolished and replaced with a centralised system of Trustees of Religious Endowments.
[Prof. Suvrajyoti Gupta], [Waqf in India: A Dangerous Anachronism in a Secular State][ January 5, 2023] https://indiafoundation.in/articles-and-commentaries/waqf-in-india-a-dangerous-anarchonism-in-a-secular-state
https://timesofindia.indiatimes.com/blogs/myview/waqf-act1995-a-tool-given-to-waqf-boards-to-snatch-the-property-of-hindus/ [ September 26, 2022]
https://www.barandbench.com/news/waqf-act-1995-challenged-supreme-court [Waqf Act, 1995 challenged in Supreme Court]
The Wakf Act, 1995, No.43, Acts of Parliament,1995, <India>
Damini Patil
Dharmashastra national law university, Jabalpur