(SIMPLIFIED) WAQF Amendment Bill: Suppressing Minority Rights or Upholding Secularism?

 Written by: Yash Swar & Harsh Thakur

10 Minutes Read

The Waqf Amendment Bill was introduced in the Lok Sabha on 8th August 2024 by Union Minister for Minority Affairs Hon MP Kiren Rijiju. The bill aims to amend the Waqf Act 1995, the Act which regulates Waqf properties in India. “Waqf” as per the Act is defined as an endowment of movable or immovable property for purposes considered pious, religious, or charitable under the Muslim law. Herein under the Act, every state is mandated to constitute a Waqf Board to manage these waqfs. This new legislation, however, has drawn both criticism and praise. Supporters argue that it brings much-needed transparency and accountability to the administration of Waqf properties, while critics claim that it infringes upon the autonomy of a religious institution and undermines minority rights. At the heart of this debate lies the tension between secularism and religious autonomy, two principles enshrined in India’s Constitution. In this piece, we shall unravel this amendment for you while discussing other relevant topics in this regard.

This law had been perpetually embroiled in controversy because of the phenomena like the arbitrary nature of determining a property as Waqf wherein properties were declared to be Waqf land based on historical records, anecdotal evidence, or even documents from centuries ago, which were incomplete, inaccurate, or difficult to verify, however, the liability of disproving such a claim was always on the current holder of the property due to which properties like Central Vista, Jawaharlal Nehru Stadium, Antila House of Ambani, a 1500 years old temple were also claimed to be Waqf Land. The sweeping powers accrued by the Waqf Council, Board and its surveyors and limited court oversight in such matters have been the root cause for this amendment. The Bill was tabled to fix such lacunae, however, it has given birth to an old-school, yet relevant debate of secularism & religious autonomy.

The Bill has many significant provisions starting with the title, where it renames the Act to ‘United Waqf Management, Empowerment, Efficiency and Development Act, 1995’. The Bill states that only a person practising Islam for at least five years may declare a property to be Waqf. The bill further clarifies that the person must own the property being declared. It does an erasure of the waqf by the user. The Bill further on the lines of the Centra Vista dispute states that any government property identified as waqf shall cease to be so. The Collector of the area shall determine ownership in case of uncertainty, and submit a report to the state government. If deemed a government property, he shall have to update the revenue records. The Act empowered the Waqf Board to inquire and determine if a property is a waqf, however, the Bill omits this provision. The Act provided for the appointment of a Survey Commissioner and additional commissioners to survey a waqf. The Bill instead empowers Collectors to do the survey. The Bill also states that two members of the Board must be non-Muslims.

MPs, former judges, and eminent persons appointed to the Council as per the Act need not be Muslims. The following members, however, must be Muslims such as representatives of Muslim organisations, scholars in Islamic law, and chairpersons of Waqf Boards. Of the Muslim members, the Bill also mandates that two such members must be women. The Bill also seeks the constitution of a tribunal having a current or former District Court judge as its chairman and a current or former officer of the rank of joint secretary to the state government. Earlier judicial oversight was restricted by not allowing appeals to be filed in any other courts than the Waqf Tribunal, however, now in a bid to increase transparency and enhance accountability, the tribunal's orders may be appealed in the concerned HC within 90 days. The bill also provides for the establishment of separate Waqf boards for Agakhani and Bohra sects along with Sunnis and Shias. The Bill also introduces stricter auditing requirements for Waqf properties, mandating regular financial audits by government-appointed auditors. It also gives the government greater oversight powers to intervene in cases of mismanagement or corruption within Waqf Boards.

Supporters of the Waqf Amendment Act argue that it strengthens India’s secular fabric by ensuring that Waqf properties, many of which hold significant economic and social value, are administered in a manner that benefits not only a part of the Muslim community but also the broader society. They argue that transparency and accountability are universal values that should apply to all religious institutions, especially when such institutions manage vast amounts of land and wealth. This argument finds further justification in the state’s involvement in Hindu temple administration. In several Indian states, prominent Hindu temples and their assets are under direct government control. Temple trusts such as those managing Tirupati or the Sabarimala temples have been under the purview of government-appointed boards for decades. This is often justified on the grounds that these temples attract massive public donations and require transparent, efficient management to prevent corruption and ensure that resources are utilised for public welfare. If state control over Hindu temples is seen as a step towards upholding secularism and transparency, it follows that Waqf properties should be held to a similar standard. The Waqf Amendment Bill, then, could be viewed as an effort to ensure that religious endowments are not above the law and that their resources are used for the broader good, not just within the confines of the community they serve.

On the other hand, critics argue that the Waqf Amendment Act infringes upon the autonomy of the Muslim community in managing its religious endowments, potentially violating their constitutionally guaranteed rights under Article 26, which allows religious denominations to manage their own affairs in matters of religion. The inclusion of non-Muslim members on Waqf Boards is seen by some as an unnecessary intrusion, undermining the religious principles that traditionally govern Waqf endowments. For these critics, the increased government control over Waqf properties represents a broader pattern of state overreach into minority institutions, echoing fears of eroding religious freedoms under the guise of transparency. They argue that while the government should play a role in ensuring proper administration, it must also respect the religious and cultural autonomy of the community involved. Supporters of the Bill, however, use this parallel to justify increased state oversight, arguing that similar standards should apply across religious institutions, regardless of their faith.

However, critics caution that comparing Waqf Boards with Hindu temple trusts ignores the unique religious and cultural functions of Waqf, which are governed by Islamic jurisprudence (Sharia). While government control over Hindu temples is framed as a necessary step to prevent corruption and ensure accountability, extending similar control over Waqf Boards could be perceived as unfairly targeting a minority institution, raising concerns about majoritarianism under the pretext of secularism.

The inclusion of non-Muslim members on the other hand, and the establishment of stricter oversight mechanisms are not, in themselves, attacks on religious autonomy. Rather, they are measures designed to ensure that public resources are managed transparently and that they serve the greater public good. The balance between autonomy and accountability is delicate, but in a pluralistic society like India, such measures can prevent the mismanagement of assets that belong not only to a religious community but also have broader societal impacts.

The Bill has now been referred to a joint parliamentary committee to gain better insights and ensure greater consensus. Suggestions have been solicited from the public and the citizens have responded with gusto inundating the committee with over 8 lakh petitions. Chairperson Hon MP Jagadambika Pal has held day-long meetings, inviting different ministers to present the Government’s stance while allowing the opposition to voice legitimate concerns regarding the proposed legislation. The Waqf Act has remained mired in controversy, secrecy and lack of transparency. The bill aims to change this. However, concerns have been raised about the proposed changes. Abolition of the office of Survey Commissioner, effective rejection of Waqf properties donated by non-Muslims, agglomeration of powers in government officials like DMs and an immensely overwhelming government role have heightened concerns about government meddling in religious affairs. On the other hand, the Government claims that it seeks to simplify the process and reduce its arbitrariness by bringing it under the purview of a formal legal structure. Absorbing stories about the Waqf board, its absurdly large landholdings (3rd largest after Defence and Railways) and seemingly wild claims on historical land have only added to its intrigue.