Waqf Amendment Act: State Oversight Vs Minority Rights

Way back in 1929, Mohandas Karamchand Gandhi wrote in Young India that 바카라�numerical strength savours of violence when it acts in total disregard of any strongly felt opinion of minority바카라�. Dr. B.R. Ambedkar stated resolutely in the Constituent Assembly debates that 바카라�rights of minorities should be absolute rights. They should not be subject to consideration as to what another party (read nation) may like to do to minorities within its jurisdiction바카라�. In the West, John Stuart Mill warned that representative democracy, with all its political and moral trappings, is susceptible to the 바카라�바카라�tyranny of the majority바카라�바카라�, and so in the interest of democratic principles, nations must determine the limits of collective interference in the life of the individual.

The rights of the minority can be hollowed out by the acts of transgressions committed by governments and by those of the social majority, engendering both social and political tyranny. The three political philosophers; Gandhi, Ambedkar and Mill, quoted above, find themselves on common ground arguing for institutionalisation of minority rights as sinews of democratic equality and a good republic.

The Waqf Act, 2025, de-institutionalises the minority rights as enshrined in the Indian Constitution, violates several provisions of fundamental rights, including the principles of secularism, threatens the moral consciousness to fraternity and tolerance in India, and panders to the 바카라�majoritarianism바카라� of the Hindutva project in the name of 바카라�바카라�one country, one people, and one nation바카라�바카라�.

Through the Waqf Act, the government intends to bring in a strong State-regulatory-regime to control and manage the Waqf properties owned by Muslims and to settle the disputes of such properties. Waqf, an Arabic-Urdu word, literally meaning 바카라�바카라�detention바카라�바카라�, but in common parlance is the religious-cum-charitable endowments, held in God바카라�s (Allah바카라�s) name, which is donated particularly by Muslims as part of religious rite. The waqf properties in India, currently exceeding 8.72 lakh, includes all kinds of property such as mosques, kabristans (graveyards), maqbaras, idgahs, dargahs, khanqahs, anjumans, imambaras and ashoorkhanas. The law empowers the government, through the district collector, to determine the legitimacy of waqf property. Earlier the determination, in cases of disputes, was done by the Waqf Tribunal, a quasi-judicial process. But with the new law, it is left to the vagaries and arbitrariness of the district collector, whose impartiality and integrity seem to be in short supply of late. Interestingly, the disputes will mean an immediate handover of the waqf properties to the government until the cases are solved, which may take many years. Those opposing the law say that it is the classic suborn-case of waqf property grab by the government.

The Constitution guarantees right to freedom of religion to every citizen, to the extent that one can freely profess, practise and propagate religion, of course, subject to public order, morality and health. It also gives the religious communities the right to establish and maintain institutions for religious and charitable purposes and to manage their 바카라�바카라�own affairs바카라�바카라� in religious matters. Further, the Constitution protects the interests of minorities by giving them the right to conserve their culture. As arranged in the Constitution, the architecture of fundamental rights, particularly of the religious/linguistic minorities, explicates a certain degree of autonomy that the minorities must claim when conjoined with their right to freedom and equality in the larger framework of deepening of democracy. Muslims in India, as a religious minority, are numerically smaller when compared to Hindus in general. They remain a non-dominant group with its symbols and values inadequately, or perhaps not, represented in the mainstream civil society; and have a distinct culture, which they want to preserve. Waqf is a part of this distinct religious and cultural ethos in Islam, not only in India but across continents, and Muslims believe that its practice is an essential religious obligation to stave off inequality, pain and suffering, prevalent in their community.

The acceptance of 바카라�legal pluralism바카라� in the legal system in India allows the prevalence of personal laws of different religions based on the definition of law in the Constitution바카라�Article 13 (3)(a)바카라�which explicitly explains that law includes, among others, the customs or usage having (non)legislative sources. Legal pluralism in the backdrop, waqf disputes require to be settled, not by the district collector, but by the provisions of the Muslim Personal Law (Shariat) Application Act, 1937, which in no way subsumes the overriding effect of the State laws. It has been observed that the Parliament, since independence, has remained keen to enact a comprehensive law for the regulation of waqf properties. However, no such effort is made for the majority community바카라�s religious or charitable endowments. In the present Act, the State intervenes in the Muslim personal laws through disproportionally empowering the local administrative and revenue officials to oversee the management of the waqf properties. Certainly, the intent of the new law is the State바카라�s control and management of waqf properties at the peril of minority rights, especially the constitutional right to property, of Muslims.

The removal of the concept of 바카라�바카라�waqf by use바카라�바카라�, which essentially means that a property can be considered as waqf through its use as waqf, is also decried as an effort by the government to de-notify large swathes of land on the basis of suspicion of the original declaration called waqfnama. Most of the waqf properties are verbally donated, much before the documentation system became the standard norm. In such circumstances and as under the present law, Muslims are bound to lose a large number of waqf properties.

In the federal scheme of the Constitution, waqf as charitable and religious endowments is present in the concurrent list (entry 28) and burials and burial grounds in the State list (entry 10). The central Act, laying down the framework of Waqf Council and Waqf Boards, is seen as yet another act of centralisation by the incumbent government. It is interesting to note that some of the non-Bharatiya Janata Party State governments, particularly West Bengal, have made overtures not to implement the law. Another contentious issue of the law is the question of representation of the Waqf Board members. The law says that the Board바카라�s Chief Executive Officer (CEO) is to be a non-Muslim and at least two more non-Muslim members must be on the board, to be appointed by the State governments. This provision directly intervenes with the community바카라�s right to manage its own affairs. Even the deletion of the inapplicability of the Limitation Act (1963) to waqf properties is seen, by many critics, as opening up of the possibilities of claiming titles through adverse possession by persons who have unlawfully possessed waqf property for more than 12 years.

The waqf law is now roiled in politics and litigation. The opposition is raising question on the 바카라�intent바카라� and the 바카라�content바카라� of the law. Street protests and communal conflagration against the law have already been reported, particularly in West Bengal. The law바카라�s critics are calling it unconstitutional. On the ground, the law is intensifying communal polarisation and hate. In such a milieu, the real issue of inefficiencies, lack of transparency and mismanagement of waqf properties is relegated to the background. The challenge to waqf reform is how to build consensus on State oversight of waqf properties without violating the minority rights as enshrined in the Constitution.

(Views expressed are personal)

Tanvir Aeijaz teaches Public Policy & Politics at University of Delhi and is Hon. Vice-Chairman at Centre for Multilevel Federalism (CMF), New Delhi

This article is part of Outlook바카라�s May 01, 2025 issue 'Username Waqf' which looks at the Waqf Amendment Act of 2025, its implications, and how it is perceived by the Muslim community. It appeared in print as 'The Minority Report.'