By Haider Abbas
The ruling Bharatiya Janata Party, buoyed by a thumping victory in Maharashtra after Haryana polls, is now to be more aggressive, as on the very onset of the winter-session of Parliament, PM Narendra Modi has stated that Waqf Law does not have a place in India’s Constitution. The ends are now to justify the means, as the façade built over forming a Joint Parliament Committee (JPC) , on the Waqf Amendment Bill (2024) is now all cleared to become an Act, which obviously will have reverberations all across the nation. JPC had 31 Opposition MPs from Lok Sabha as well as Rajya Sabha. The Opposition sought an extension of JPC, which does not seem to have any takers. JPC chairman, a BJP MP, Jagdambka Pal, has informed that the 500-pages report is ready to be tabled. Heady days are therefore ahead.
It is worth recalling that Waqf properties are protected by the Constitution of India through the Shariat Application Act, 1937. After independence, came the first Waqf Act of 1954, was amended in 1995, and later again amended in 2013. This Bill, slated to now become an Act, was brought in Parliament, on August 8, had 40 pages and covered 44 changes. It is therefore going to change everything of the past. Despite that being completely antithetical and inconsistent with the Constitution!
The Act, once made, is most likely going to fuel a full-blown storm. It is going to be a ‘final end’ to the last vestige where Muslims exercised some control. Muslims have called for protests; it happened in Jaipur, Kolkata and Gulbarga etc. The Bill was opposed by the largest Opposition party, Samajwadi Party (SP). The narrative to finally gulp, in the name of reforms, the Waqf properties, on an India level was led by the spread of a national canard, that the 32 Waqf Boards in India, hold properties only third to Indian Railways and Army. Railways and Army own these properties, but the Waqf Board is not the owner of these properties. It only looks after their maintenance, as per the Waqfnamas (Endowment deeds).
Waqf in English means an endowment, through which Muslims donated their lands, moveable and immoveable properties, for the welfare of widows, orphans, schools, hospitals, madrassas, etc. There are two types of Waqfs: one is Waqf Alal Aulad (meant for progeny’s welfare) and the other is Waqf Alal Khair (for general public welfare), with an appointed Mutawalli (Manager). In no case can a Waqf be sold, even the owner cannot take it back once a property is designated as Waqf. Thereafter, the property is to be vested with God. In UP alone , there are 2,10,239 properties registered in Sunni Central Waqf Board and 15,386 properties in Shia Central Waqf Board.
The Act will authorize that if any Waqf by ‘user’, used as such, without any endowment-deed for decades/centuries, is not registered, then after the Act is passed, can be registered as Waqf within six-months. How easily said? What if one could not get a Qabristan, Kerbala, Dargah, Khanqah, Yateem Khana, Mosque and Sarai etc as ‘registered Waqf’ in six months? Government will obviously take over it! Both Nitish Kumar of JD (U) and CB Naidu of TDP, partners of the government, are supportive of the government on all this.
Will it not be better to recall that despite the guarantees of Waqf Act (previous) the demolition of a 100 years mosque in district Barabanki (UP) in 2021, by district authorities, under anti-encroachment drive, had taken place. This happened when it was registered as Waqf. A 16th century Shahi Masjid in Allahabad in 2023 was razed. In 2022, a 300 years old mosque in Muzaffarnagar was also demolished! All were Waqfs. The 150 old Sunehri Masjid in New Delhi, is facing a similar fate! Now what more is to happen?
The Act is patently violative of our Fundamental Rights enshrined in the Constitution (Article 12 onwards to 35), which interestingly are subject to other Articles, but it is only the specific Article 26, which is absolutely free from any such embargo, and allows Muslims, and people of all other religious denominations, an unconditional freedom to manage their religious affairs, ‘subject to public order, morality and health.’
Now, in the wake of Article 26, it warrants a threadbare analysis on the government initiative to bring about changes. For instance, to nominate non-Muslims on state boards; replacing the Waqf Tribunal authority with District Collector as arbiter on whether a property is Waqf property or government land; redefining how a property is deemed to be in the possession of Waqf. This will change the very essence of Waqf Act of 2013. These changes will be absolutely inconsistent with our Article 26, which very clearly allow Muslims, to ‘(A) to establish and maintain institutions for religious and charitable purposes, (B) to manage its own affairs in matters of religion, (C) to own and acquire movable and immovable property and (D) to administer property in accordance with law.’
The ‘Waqf by user’ since centuries, will now be of a bygone era, and thence onwards, will be invalidated, as previously they had all belonged to Muslims ( donated by Muslims of course) even if there was no endowment deed. Article 26 gave Muslims a complete autonomy on them, through its Clause (D). The right of administration is not at all in any way hindered. But, now it is the District Collector (DC) who will decide. After the Act, the DC in each district is to be made the sole arbiter regarding any particular Waqf property, and not the Waqf Tribunal, as was the case before.
Therefore, now if the DC entertains any doubt, about the nature and user of that property, nobody can do otherwise except and unless the DC passes final orders. The DC may keep the matter pending for decades and till the DC makes a decision the property cannot to used! Earlier, if Waqf Board was to stake a claim, it was open to be contested in Waqf Tribunal within three years, and on its decision the property was either to remain in Waqf Board or otherwise given to the other party. Why should the DC be given such overwhelming powers, when Article 26 Clause (C) clearly states that the right of ownership of such properties, through documents or otherwise by user, under no circumstances, can be taken away. This is what the Act will nullify.
The Act also allows the nomination of two non-Muslims members in the State Boards. For this, the government will need to first circumvent the whole of Article 26, which in its Clause (B) allows Muslims to manage their own affairs in matters of religion. The reality is that inside Muslim themselves, there are two distinct Sunni and Shia sects, and there are a vast number of differences between Sunni themselves as well as within Shias. The presence of non-Muslims members in the management of Waqf Board will affect the whole system.
There is going to be only more chaos in future, as Clause (A) of Article 26, clearly specifies that establishing institutions for religious and charitable purposes, has to be seen in the spirit and thought of the person who has dedicated the property. Here an awkward situation will arise, as one thing may be religious and charitable for one but not for another, and as such, the person who has dedicated his or her property, will deprive him or her off-springs to use the property. This will result in absolute contravention of the right of the donor.
The Act will squeeze every bit of autonomy from the Waqf Board, by appointing a Non-Muslim Chief Executive Officer (CEO), who as under Section-26 of Waqf Act, has been accorded with unbridled powers, to the extent that CEO has the right to not to implement a resolution passed by the Board, and may send it to the ‘State Government along with his objections to the order or resolution, and the decision of the State Government thereon shall be final.’ In fact a Sunni and a Shia CEO deserves a place in each respective board. The CEO, therefore, is far more powerful than even the Chairman of the Board. Every resolution of the Board, after the Act, will hang in a limbo.
The Act will give a final blow to the Waqf Board, which is likely to open the floodgates for continued illegal occupancies. The law-of-limitation over adverse possession by the opposite party, from which the Waqf Board was earlier exempted, will now be in place. After the proposed amendments in Section 107 of the erstwhile Waqf Act, the Board will abdicate its right to stake its claim thereon. What deserves to be mentioned is that after 1947, a peculiar situation had arisen, particularly in Punjab, where a large number of mosques etc were abandoned by migrating Muslims to Pakistan, and such buildings were possessed by Sikhs, but after the 2013 amendments, many of such buildings have been returned back to Muslims. This Act will block this passage.
Waqf is an exclusive Muslim domain as it stems from donations of Muslims since ages but this Act will make them lose all control over it and the government will take over. No wonder, Muslims are now up to their last-wake-up-call.
Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer
- The writer is a Former UP State Information Commissioner, an advocate and a political analyst
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