- The Waqf Board Act of 1995 represents a deliberate erosion of Hindu rights by introducing the Waqf Tribunal and its extensive powers.
- Lacking procedural fairness and legal recourse, the Act favors the protection and promotion of Waqfs at the cost of non-Muslim interests.
- Victims of Waqf’s land acquisition are burdened with proving their rights to the properties, a blatant violation of common sense and justice.
- In essence, the Waqf Act emerges as a post-colonial initiative, systematically eroding Hindu rights over time.
Historical Background
Conceptually, Waqf (pl. auqaf) is an Islamic trust held perpetually in Allah’s name and protected from any other use. Unlike a trust, Waqf is irrevocable and perpetual, inherently faith-based, requiring Sharia-sanctioned activities, and lacks the requirement of charitable intentions.
Historically, Waqf in India and globally has been linked to Islamic expansion, conversion efforts, and takeover of other religious sites. During the Sultanate and Mughal periods, waqfs were managed centrally, with mutawallis (trustees) and overseers like Qazis. The judicial system, mainly consisting of Islamic clergy, tended to favor Shariah, leading to biased decisions against non-Muslims.
In pre-British India, Sufis played a significant role in the spread of Islam. Sufi networks were involved in converting populations, often by blending local customs with Islamic practices. Waqf played a crucial role in the conversion process by providing subsistence allowances to the Sufi network. In some cases, entire villages with uncultivated land were granted to Sufis, encouraging them to bring it under cultivation. This brought charismatic Muslim religious leaders into close contact with the indigenous population, gradually bringing them into the Islamic fold.
Globally, there is a tradition of converting and demolishing other denominational sites into waqfs. Famous examples include the Ka’ba and Al-Aqsa Mosque in Jerusalem. In India, historical claims to lands granted as waqfs often overlook rival claims from tribal communities and local Hindu farmers, suppressed by Ulama-dominated Qazis and officials. These claims continue in our times, impacting legal disputes like the Ayodhya and Gyanvapi dispute, even extending to national monuments. Despite weak legal arguments, the emotional and polemical force behind the notion of property “belonging to Allah, perpetual and inalienable” adds strength to these claims.
1954 – Sowing the seeds of self-destruction
Civilizations die by suicide, not murder – Arnold J. Toynbee
After Hindus moved from Pakistan to India following the partition, their properties in Pakistan were taken by Muslims and the Pakistani Government. In contrast, the Indian government allocated land belonging to Muslims who moved from India to Pakistan to the Waqf Boards. India enacted the Waqf Act 1954,[1] establishing a Waqf Board as a political body with extensive executive and quasi-judicial functions. The legislation gave the Boards rights to lease, mortgage, or sell properties, boosting their economic value.
Any property taken by a Waqf from a non-Muslim party is a loss to the latter, inflicted under state sanction and without judicial recourse. That makes the Waqf Act an unlimited predatory practice, a clear usurpation of the latter party’s rights.
There are no equivalent organizations for Hindus, Sikhs, or Christians. The Sikh Gurudwara Act of 1925 solely governs Gurudwara management, while various acts, including the Religious Endowments Act 1863 and Indian Trusts Act 1882, regulate Hindu temples and organizations – by state governments and not by Hindus.
1995 and 2013 – A monster is created
The Waqf Act of 1954 underwent several amendments in 1964, 1969, and 1984, followed by a complete overhaul in 1995.[2] This significant amendment was prompted by so-called secular parties aiming to appeal to their Muslim vote bank. The 1995 amendment introduced the Waqf Tribunal, a dangerous innovation. This tribunal holds extensive powers in settling disputes related to properties claimed as Waqf, including lease and tenancy matters. Comprising judicial and civil service personnel, along with someone knowledgeable in Muslim law, the tribunal’s decisions are final, with no provision for appeal. Unlike regular civil courts, the tribunal prioritizes waqf properties’ protection and improved management. This inherent bias makes it difficult for innocent third parties to assert their legitimate interests before the tribunal compared to a civil court. The predatory nature of this legislation can be gleaned from the following examples:
- Section 6 requires any objections to the published Waqf properties list to be filed within one year. This is nothing but a smokescreen hiding the real motive, viz., to give Waqf decisions the stature of divine edicts.
“6. Disputes regarding 4[auqaf]…… …. the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of 4[auqaf]”
- Under Sections 40 (1) and 40 (2) of the Act, any property may be declared as waqf property after collecting information from the public but without any public hearing. The decision of the Waqf board will be final.
“40(1). Decision if a property is 1[waqf] property— The Board may itself collect information regarding any property which it has reason to believe to be 1[waqf] property and if any question arises whether a particular property is 1[waqf] property or not or whether a 1[waqf] is a Sunni 1[waqf] or a Shia 1[waqf], it may, after making such inquiry as it may deem fit, decide the question.”
“40(2): The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the tribunal, be final. (3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is 1[waqf] property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is 1[waqf] property, call upon the trust or society, as the case may be, either to register such property under this Act as 1[waqf] property or show cause why such property should not be so registered.”
- Section 40(3) places the burden of proving ownership on the original landowner.
“40(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is 1[waqf] property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is 1[waqf] property, call upon the trust or society, as the case may be, either to register such property under this Act as 1[waqf] property or show cause why such property should not be so registered.”
- Section 85 of the Waqf Act empowers the Waqf Tribunal, and its rulings are final. No court, including the Supreme Court, may overturn the Waqf Tribunal’s ruling.
“85. Bar of jurisdiction of civil courts — No suit or other legal proceeding shall lie in any 2[civil court, revenue court, and any other authority] in respect of any dispute, question, or other matter relating to any 1[waqf], 1[waqf] property or other matter which is required by or under this Act to be determined by a Tribunal.”
As if that was not enough, the Act was further amended in 2013[3] to give it limitless authority to seize anyone’s property. The amendment establishes stringent conditions for acquiring waqf lands, making it challenging and economically unfeasible. The most significant impact of this amendment is the stringent protection it provides to waqf properties against any claims for national development. Given that a significant portion of waqf land is situated in urban areas, this has become a major obstacle to urban development in India.
Waqf’s Predatory Methods of Land Grab
Consider the following example[4] to see how the Waqf’s land grab scheme works:
The Waqf Boards currently control 8,54,509 properties across more than 800,0000 acres, more than doubling since 2009, surpassing even the Army and Railways in land ownership.
Mr. X owns a piece of land adjacent to Mr. Y’s property, with unclear boundaries between the two and under dispute. Mr. Y claims part of X’s land as a waqf, perhaps asserting it as a burial ground and appointing himself or a connected individual as the mutawallis (trustee) without formal documentation. He then registers it with the Waqf Board. The Board is tasked with investigating the land, and while X can contest the registration, the Board ultimately decides if it qualifies as waqf property. However, much like the medieval Qazi, the Waqf Board leans toward protecting and promoting waqfs, offering little chance for a fair outcome. State authorities are bound to follow the Board’s directives, leaving X with limited options, such as appealing to the tribunal, which also tends to show bias. If the land is officially designated as Waqf, based on Board registration and state survey, X faces an uphill battle against both Y and the extensive Waqf bureaucracy supported by the Waqf Fund and numerous staff. The 2013 amendments to the Act have also introduced the threat of criminal prosecution, adding to X’s challenges.
This example is not some figment of imagination. In 2009, Waqf held nearly 400,000 registered properties and around 600,000 acres of land.[5] The Waqf Boards currently control 8,54,509 properties across more than 800,0000 acres[6], more than doubling since 2009, surpassing even the Army and Railways in land ownership. Just before the 2014 general election, UPA, the incumbent ruling party in India, committed a shockingly egregious act of handing over 123 prominent properties in Delhi to the Waqf Board. This foolishness was finally rectified in 2023 by the current government.[7]
OpIndia has cited 21 instances[8] in the last few years when the Waqf Board in India has encroached on, illegally disposed of, and infringed on various properties. Recent Tamil Nadu Waqf Board declarations, including a 1500-year-old Hindu temple, further exemplify the concerning trend.
Constitutional Objections to the Waqf Board Act
Apart from the obvious concern that no private property is safe from the predatory Waqf board policies, the Act runs afoul of several constitutional rights and provisions:
- Waqf Act of 1995 violates the Indian Constitution 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.
- Ironically, the Places of Worship Act 1991, designed to preserve the religious character of existing religious places, directly contradicts the 1995 Waqf Act, which empowers the Waqf Board to claim rights over any property.
- The current waqf legislation endangers public peace and community harmony, breaches individual property rights, and may support radical politics.
Summary
The Waqf Act is a peculiar Draconian Act that gives followers of one religion presumptive powers similar to Eminent Domain but without compensation. It is a continuation of the abuse of power by Muslim rulers prior to independence, as proved by the fact that no court remedy is permitted. A diverse multi-religious constitutional democracy like India cannot afford laws that arbitrarily take away citizens’ hereditary property rights without appeal. The Indian parliament should repeal all the Waqf Acts forthwith.
Citations
[1] WAKF ACT, 1954 | Lawsisto Cental Acts; https://lawsisto.com/Read-Central-Act/488/WAKF-ACT-1954
[2] The Waqf Act of 1995, IndiaCode; https://www.indiacode.nic.in/bitstream/123456789/1984/1/199543.pdf
[3] The Wakf (Amendment) Act, 2013; minorityaffairs.gov.in; https://minorityaffairs.gov.in/WriteReadData/RTF1984/1658315616.pdf
[4] Suvrojyoti Gupta, Waqf in India: A Dangerous Anarchonism in a Secular State, India Foundation; https://indiafoundation.in/articles-and-commentaries/waqf-in-india-a-dangerous-anarchonism-in-a-secular-state/#_edn17
[5] Vivek Kumar, How the Waqf Board has the third largest ownership of land after the Indian Railways and the Defense Dept; https://lawstreet.co/speak-legal/waqf-board-third-largest-ownership-indian-railways-and-defense/#:~:text=Waqf%20Board%20has%20a%20tremendous%20amount%20of%20property.,report%20headed%20by%20K%20Rehman%20Khan%20in%202009.
[6] Rajiv Gupta, Waqf Act,1995: A Tool given to Waqf Boards to snatch the property of Hindus?; The Times of India; https://timesofindia.indiatimes.com/blogs/myview/waqf-act1995-a-tool-given-to-waqf-boards-to-snatch-the-property-of-hindus/
[7] One India, Government takes back 123 properties gifted to Waqf Board before 2014 elections; https://www.oneindia.com/india/government-takes-back-123-properties-gifted-to-waqf-board-before-2014-elections-3525257.html
[8] OPIndia, How Waqf Boards have been insidiously encroaching upon and occupying various properties and claiming their right over them; https://www.opindia.com/2022/10/21-instances-when-waqf-boards-india-illegally-encroaching-various-properties/#google_vignette