The Waqf (Modification) Invoice of 2024 is an thought whose time has undoubtedly come. The roots of the present waqf legislation return to the British colonial period, the place it laid the groundwork for what would turn into a divisive legacy in India’s governance. This was a calculated technique designed to additional the British coverage of divide and rule, because it performed on non secular strains to weaken the unity of the nation. Regrettably, post-Independence, this coverage was continued by the Congress occasion, which perpetuated such insurance policies even after the nation gained freedom.
The time to appropriate this historic injustice is now, and the Waqf (Modification) Invoice seeks to handle longstanding issues and make the waqf administration system extra inclusive, clear, and environment friendly. Correcting the historic injustice executed to each Muslims and non-Muslims, it’s one other decisive step on the strains of the abrogation of Article 370, the criminalisation of triple talaq and the Citizenship (Modification) Act, underscoring the philosophy of “Modi hai to mumkin hai”.
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The modification will go a great distance in the direction of correcting the failings of the 2013 modification. The latter, handed by Parliament after simply 5 hours of debate, was a blatant try at appeasement politics on the eve of the 2014 normal election. A better examination of the 2013 modification would reveal that it was towards the essential spirit of the Structure because it discriminated between residents on the premise of faith, which is non-permissible below articles 14, 15, 16, and 21. Permitting the waqfs to assert land belonging to different communities resulted in abuse and a fast enlargement within the quantity of land below waqf administration. It additionally resulted in unrestricted claims being laid on public and authorities land, opposite to the idea of waqfs, the place solely the donation of self-owned properties was allowed.
Confrontational angle
By way of this text, I want to current another view to the one expressed by Salman Khurshid (‘The march of uniformity’, IE, April 3), whom I extremely respect and who’s a colleague on the Bar. His article begins by stating that the Joint Parliamentary Committee (JPC) headed by MP Jagdambika Pal had set a confrontational tone. It’s noteworthy that the JPC has all through adopted a righteous path and rigorous course of, deliberating for over six months and processing almost 1 crore strategies. It has held 28 conferences and performed 128 hours of session, together with with the waqf boards of assorted states. Nonetheless, the one instance of a confrontational strategy was the unruly behaviour of TMC chief Kalyan Banerjee, who smashed a glass bottle and threw it on the JPC chair on October 22, 2024.
The creator claims the 2024 modification fails the take a look at of constitutionality when it comes to Article 25 and Article 26, since waqfs have a non secular flavour. These assertions are deceptive because the superior courts have repeatedly held that waqf boards are statutory our bodies and their duties are secular and never non secular in nature. In Syed Fazal Pookoya Thangal vs. Union of India, the Kerala Excessive Courtroom has held that the Waqf Board “is a statutory physique, pure and easy. It isn’t a consultant physique of the Muslim neighborhood.” Comparable observations have been made by the Allahabad Excessive Courtroom in Hafiz Mohammad Zafar Ahmad vs UP Central Sunni Board of Waqf.
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It could be additional famous that Articles 25 and 26 themselves don’t grant absolute rights, however are topic to “public order, morality and well being”. Even when we think about Khurshid’s assertions to be true with regard to the waqf boards being non secular in nature, the modification is squarely lined below Article 25(2)(a), below which the state is allowed to make a legislation “regulating or proscribing any financial, monetary, political or different secular exercise which can be related to non secular observe”.
Inclusion of non-Muslim members
The difficulty of the inclusion of two non-Muslim members within the waqf boards is once more with none substance or benefit. As has been identified by the house minister, the waqf boards are administrative and never non secular our bodies. Non-Muslims will solely be included within the boards — the place Muslim members will proceed to be within the majority — and never the waqfs themselves. It’s a contradiction that the waqfs are open to accepting donations from non-Muslims (as offered within the 2013 modification), however are unwilling to provide any illustration to them in administering waqf properties. Giving due illustration to different religions whose land has been taken over by the waqf boards is important to make sure equal safety of legal guidelines.
The article speaks concerning the removing of the class of waqf by consumer. It’s noteworthy that the idea is towards constitutional rules and the doctrine of pure justice in addition to Islamic legislation. This provision has been probably the most abused since its inclusion within the 2013 modification. That is clear from the truth that within the 100 years from 1913 to 2013, waqf boards managed 18 lakh acres of land, however within the 12 years because the 2013 modification, this has grown by 21 lakh acres — an eye-opening enhance and a main instance of the abuse of the Waqf Act by sure people with vested pursuits.
The abuse is clear, as seen in, for instance, the claims over a complete village in Tiruchirappalli, Tamil Nadu — the place, shockingly, a 1,400 yr previous faith claims possession rights over a temple constructed 1,500 years in the past. Comparable claims have been made concerning the Parliament constructing being a waqf property by AIDUF chief Badruddin Ajmal, in addition to over Wager Dwarka and the Taj Mahal.
The creator has struck an apologetic tone in claiming that the 123 prime properties in Delhi given to the Waqf Board by the UPA authorities in 2014 have been in truth waqf land that had been inadvertently claimed on the time of the capital’s institution, and that’s the reason they have been returned. The timing of the switch, only a few days earlier than the Mannequin Code of Conduct got here into drive, was itself suspect. Additional, these properties have been disputed and the issues have been being heard by the Delhi Excessive Courtroom. Gifting them to the Waqf Board illegally when the matter was subjudice was a gross encroachment of the powers of the courtroom.
Separate boards would result in segregation
The creator has additionally claimed that making separate boards for the Bohras and Aga Khanis would promote segregation and separation, whilst illustration is sufficiently addressed by having separate Sunni and Shia boards. First, there are solely two states with a separate Shia board — UP and Bihar — whereas Jammu and Kashmir has initiated the method to ascertain a Shia board. Second, it’s telling that the Congress occasion calls for a caste census for Hindus on one hand however is unwilling to grant the identical for the Muslim neighborhood. Additional, having separate boards would solely serve to enhance administration and the general public belief of their respective communities.
The creator’s assertions that the 2025 modification making the Limitation Act relevant to the Waqf Act will undo the useful steps taken through the years is solely deceptive. These are the type of self-serving arguments that led to the denotification of the 123 prime properties in Delhi. Actually, the premise of the legislation of limitation is to make sure that the particular person defending shouldn’t be burdened with preserving proof over an onerously very long time. The Congress authorities eradicating its applicability led to elevated litigation, since claims could possibly be most well-liked by the waqf boards even after a few years had handed.
At the price of reiteration, the modification has no impact on the non secular actions of the waqf and offers solely with the secular and financial actions of the boards. It appears that evidently whereas assiduously chiselling the options of the Waqf Act, the Congress occasion ended up defacing the statue named the Structure of India.
The author is a senior advocate and nationwide spokesperson, BJP
