The Waqf (Amendment) Bill proposed by the BJP-led Union government in August last year is set to be tabled again in the Parliament in the coming days in the second leg of the Budget Session. The bill, which sailed through a Joint Parliamentary Committee (JPC), evading all the changes and suggestions proposed by the Opposition MPs, is expected to spark fierce protests both inside and outside the Parliament.
Announcing a protest against the bill on March 17, the leaders of All India Muslim Personal Law Board (AIMPLB), which represents different organisations within the Muslim community, said in a press meet, "The Muslim community views this Waqf Amendment Bill as a direct attack on the community. It is evident that the BJP’s politics thrive on communal polarisation and the strategy of 'divide and rule.' However, its allied parties must decide how far they are willing to align with this divisive agenda.”
Introducing the bill in Parliament on August 8, 2024, Union Minister Kiren Rijiju had claimed, "With this bill, there is no interference in the freedom of any religious body....Forget about taking anyone’s rights, this bill has been brought to give rights to those who never got them...."
However, Muslim organizations and legal experts feel that a closer look at the new amendments hints at a careful intrusion into the religious freedom of Muslims and therefore challenges the very structure of secularism. Let's dig in.
What are the 2024 Amendments aimed at?
According to the government, the Waqf (Amendment) Bill, 2024 aims to amend the 1995 Act with the goal of "enhancing the regulation and management of waqf properties across India." One of its key provisions is the mandatory inclusion of non-Muslims in the management of Waqf affairs, particularly within the Central Waqf Council and State Waqf Boards.
The bill seeks to remove the 'waqf by user' provision, which allows a property to be treated as Waqf based on its long-term use for religious or charitable purposes, even without formal documentation. The bill also prevents a Muslim from giving Waqf before completing five years since embracing Islam.
Other key provisions of the bill include replacing the Survey Commissioner with the Collector, who will now have the authority to conduct surveys of Waqf properties. Additionally, the bill grants the Collector the power to determine the ownership of a government property identified as Waqf.
The bill curbs the power of Waqf Tribunals and introduces provisions for appealing its orders to the High Court within 90 days. It also removes the Muslim law expert from the tribunal panel. The bill emphasizes the use of technology to streamline the registration of Waqf properties and establishes separate Waqf boards for minority sections within Muslims, such as the Aghakhani and Bohra communities.
Waqf - a distinct form of charity
Explaining 'Waqf' in the context of the proposed amendments, a September release by the PIB states that it (Waqf) refers to properties dedicated exclusively for religious or charitable purposes under Islamic law, and any other use or sale of the property is prohibited.
"Waqf means that the ownership of the property is now taken away from the person making Waqf and transferred and detained by Allah. ‘Waqif’ is a person who creates a Waqf for the beneficiary. As waqf properties are bestowed upon Allah, in the absence of a physically tangible entity, a ‘mutawalli’ is appointed by the waqif, or by a competent authority, to manage or administer a Waqf. Once designated as Waqf, the ownership is transferred from the person making the waqf (waqif) to Allah, making it irrevocable," explains the PIB release.
According to Muslim scholars, the history of Waqf as a distinct and structured form of charity can be traced back to an advice given by Prophet Muhammed to his companion and the second caliph Umar ibn al-Khattab, when asked about a piece of fertile land he owned in Khyber.
The prophet advised Umar to preserve the land and make its yields useful for others. According to scholars, this became the basis of the definition of Waqf.
"Waqf law does not mandate Muslims to be its founders and beneficiaries and is not limited to just mosques, madrasas and graveyards. It could be anything that the person thinks will be useful for the society he is living in, considering it is allowed under the Islamic law," says Professor Abdulla Kottappalli, a notable scholar in waqf studies and Assistant Professor at the Centre for Indo-Arab Culture in Jamia Milia Islamia.
An interesting story by explorer and scholar Ibn Battuta, in his book Rihla, paints a clear picture of the multidimensionality of the concept of Waqf. Battuta narrates the story of a Syrian merchant who happens to see children working in hotels, often being beaten up by the owners for carelessly handling Chinese pottery which was widely in use at the time. The merchant, according to Battuta, gives some of his property as Waqf, asking the owners to avail the damages from it and refrain from beating the children.
In India, several institutions including schools, hospitals and universities were established using waqf funds and on waqf lands.
History of Waqf boards
The idea of Waqf boards, as government-appointed supervisory bodies to oversee the functioning of Waqf properties, emerged in the British era. Following the 1857 rebellion, the British decided to stay away from the responsibility of taking care of Hindu and Muslim religious structures and the respective communities were legally given the charge through the Religious Endowments Act of 1863.
The British regime's decision of granting community autonomy over religious structures, according to Abdullah, was led by their idea of secularism, which required the state to refrain from interfering in religious matters. This idea of secularism was later adopted by India as one of its core constitutional values.
The Waqf boards came into existence post independence through the Waqf Act 1995. According to the law, the Waqf boards in each state will be headed by a chairperson and consist of one or two members elected from the electoral colleges of a the state's Muslim parliamentarians, MLAs and Bar Council members.
In case of non-availability of the above mentioned categories, the members can also be appointed from among Islamic scholars, social workers and other persons of eminence. The law also pushes for two of the members to be women, which has been in practice across various state waqf boards.
Notably, the Waqf board does not hold ownership rights over any of the Waqf properties. It is only in charge of supervising the functioning of the properties and cannot benefit from it. The 1955 law authorises the state government to suspend or dissolve a committee or members if they are found unfit for the job or involved in corruption.
Waqf Tribunals
Tribunals in India are quasi-judicial bodies that were set up with the intention of reducing the burden of other courts and ensuring faster delivery of justice. Apart from Waqf tribunals, there are corporate tribunals, like the National Company Law Tribunal (NCLT) which are entrusted to resolve disputes related to Indian companies.
The Waqf tribunals have been established according to section 83 of the 1995 Waqf Act, which allows state governments to "constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Waqf or Waqf property."
The three-member Tribunal consists of (1) a Judge of the rank equivalent to a Class-1, District, Sessions, or Civil Judge as Chairman, (2) a state officer equal to an Additional District Magistrate, and (iii) an expert in Muslim law and jurisprudence.
The law grants the tribunal the power of a civil court and notes that its decision will be legally binding and final.
However, like the decision of any other lower court, the decision of the Waqf Tribunal can be challenged in the higher courts.
"A High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit," the 1995 Act notes.
'Targeting Muslims, enhancing Islamophobia'
"For the first time, the government is making serious amendments to an important law concerning the faith of Muslims with zero consultations with the community leaders or stakeholders," said SQR Ilyas, spokesperson for the AIMPLB.
The government had claimed that the amendments were intended at uplifting the backward sections within the community and ensuring transparency.
"But none of the provisions in the proposed bill is intended for this purpose. The entire bill has been designed in such a way so as to facilitate the government to usurp the Waqf properties," Illyas said stressing that around five crore Muslims have submitted their disapproval via emails against the bill.
Commenting on the amendment that prevents a Muslim from giving Waqf before completing five years since embracing Islam, Ilyas said, "This is against the shariah. According to Islam, any practising or non-practising Muslims can give Waqf. Why would the government prevent a person who has recently embraced Islam from exercising his religion? It is illogical."
"The attempt to target Waqf property is a violation of minority rights. It is a part of the overall strategy to weaken the Muslim community and enhance Islamophobia,” said Prof. G Mohan Gopal, former director of the National Judicial Academy of the Supreme Court of India.
Gopal highlighted the "singling out" of Waqf properties, when every other religion's right to community autonomy remained untouched.
"Devaswom Boards, which oversee the secular governance of public temples in Kerala can statutorily have only Hindus as members. The Waqf Bill violates this norm by inserting non-Muslims into Waqf Boards, which manage private property dedicated by Muslims as an inherent part of the practice of their religion, while leaving undisturbed the prohibition against non-Hindus managing Hindu endowments and public temples," Gopal said.
"Interference with Waqf by non Muslims, against the teachings of Islam constitute a serious violation of the fundamental right of Muslims to practice their religion," he added.
Gopal alleged that the "hostile singling out of Islam is a constitutionally malafide action on the part of the government."
"It is inspired by the stated goal of the ruling party’s ideology of converting India into a Hindu Rashtra. It has no Constitutional legitimacy," he stressed.
According to Abdulla Kottapalli, the Bill is not just anti-Muslim but also challenges the very structure of Indian secularism.
"India has long followed a non-interventionist policy in the management of religious trusts, which is a crucial aspect of Indian secularism. If the Union Government imposes a Waqf regulatory mechanism without proper consultation and consent from the Muslim community, it would constitute an infringement of this long-standing secular tradition. Such an approach could undermine the legitimacy of the Waqf Board system among Muslims," he remarked.
Calling the bill "disastrous," former Maharashtra minister and Rajya Sabha MP Fauzia Khan noted that contrary to the claims of the government, the amendments are not intended at aiding the Waqf boards.
"Instead of aiding the board to overcome its challenges, the government is snatching away everything from the Muslim community. Its like killing the patient, instead of treating them," she said.
"The whole law is going to be disastrous for the Muslim community, they will be losing their religious lands and other properties donated by their forefathers for the upliftment of the community," she added.
Khan emphasised that amendments like the removal of the 'waqf by user' provision are challenging the very spirit of Waqf.
"A large amount of properties under the Waqf are 'waqf by user.' Many properties do not have documentation. For instance the Taj Mahal, or the Ajmer Dargah. How can you bring documents for these? The new amendment is a big threat to the actual spirit of Waqf," she said.
Illyas expressed concern that this amendment will affect the ongoing disputes regarding the ownership of mosques including Gyanvapi and Sambhal.
"It is a very serious issue. In UP itself, more than 70 percent mosques will be affected by the removal of this provision," he said.
Noting that the removal of 'waqf by user' provision will result in large amounts of land transfer from the hands of the Muslim community, Gopal said; "The blanket removal of user rights solely of Muslims is anti-constitutional and should be struck down. Even though the right to property is no longer a fundamental right, it is still a constitutional right. It is not possible to sweep away existing property rights in an arbitrary manner."
Apart from the "draconian" amendments, concerns were also raised regarding the manner in which the bill was passed through the JPC, with opposition members raising serious allegations against the JPC chairman and BJP MP Jagdambika Pal.
Commenting on the alleged sabotaging of JPC proceedings, Fauzia Khan called it a "death blow to democracy."
"If this is how we are going to function in parliament, then it is setting a dangerous precedent. Tomorrow, any party with a majority can just crush the voices of the minority and finish off," she said.
The Waqf Bill wil be tabled in the Lok Sabha in the coming days. Apart from a heated debate and a legal battle, the bill will also be a determining factor in the upcoming Bihar elections which is crucial for the NDA ally JDU headed by Bihar CM Nitish Kumar.
"If Nitish Kumar and his party go ahead with their support for the Bill, they will not get any support from the Muslim community for the upcoming elections. Our position is very clear. If this Bill is passed, we will consider it a direct attack on the community. Its consequences will have to borne by the two allies too. This is a matter of faith for the Muslim community," the AIMPLB has warned.
With multiple players at stake, it remains to be seen how the Narendra Modi-led government will decide on the issue, which is of utmost importance to Indian Muslims.