In this article, we will discuss one of the most unique creations of the Congress party for Muslims: The Waqf Act.
In 1947, Congress allocated 40% of Indian land to Muslims, but even then, this was deemed insufficient. To further address these needs, the Waqf Act was introduced.
Let’s explore some of its fascinating provisions. Hold on to your seats.
Yes, this Act exists in a secular country, even though no Muslim-majority nation has such an Act.
What is the Waqf System?
It’s part of a charitable system within the Muslim community.
Imagine Ahmed, an 80-year-old man who owns two apartments. Before passing, he decides to donate one apartment for the community (qaum), transferring it to the Waqf. Since he has donated it, the property is now considered to belong to Allah. The Waqf Board is not the owner but a caretaker of the property, and it can be used for Muslim schools, hostels, community halls, or other purposes benefiting the Muslim community.
Originally, Waqf was a property of Allah, donated for charity for Muslims. This was its intended meaning.
However, this meaning evolved over time.
Partition and the Waqf Act
In 1947, Hindus left their lands in Pakistan and moved to India, while Muslims left their lands in India to go to Pakistan. Pakistan confiscated Hindu lands and distributed them among Muslims and the government. Nehru, however, took a different approach.
He ruled that no Hindu could touch the lands left by Muslims who migrated to Pakistan. Instead, he collected all these properties and gave them to the Waqf.
The Waqf Board Act of 1954 was not as far-reaching, but real change came with the Waqf Act of 1995.
Congress leader and PM P.V. Narasimha Rao introduced the Waqf Act of 1995, giving the Waqf Board extensive powers to acquire lands.
Key Provisions of the Waqf Act
Section 3(r): Defines Waqf as any property dedicated to a purpose recognized by Muslim law as pious, religious, or charitable. So, if the Waqf Board deems any land as religious for Muslims, it becomes Waqf.
For instance, if you bought land from Ramesh in 2010, who had bought it from Salim in 1965, the Waqf Board could claim that Salim donated that land to the Waqf in 1964, making it Waqf property.
What can you do?
You can’t go to a regular court; you must approach the State Waqf Board.
The Structure of the Waqf Board
In India, there is a central Waqf Board and 32 state Waqf Boards, each comprising a seven-member government-appointed committee—all of whom must be Muslims.
The same Congress that brought the Temple Act to control Hindu temples and allowed non-Hindus on temple boards, also established the autonomous Waqf Board, mandating that only Muslims can be members.
The Waqf Board employs a surveyor who surveys properties. If they believe a property belongs to Waqf, they can issue a notice under Section 4, which gives the surveyor substantial power.
The Waqf CEO, who must be a Muslim (Section 28), holds the authority to direct local administrators, like collectors.
Section 40:
Let me quote Section 40 in both English and Hindi for clarity.
The decision on whether land is your property or Waqf is made by the Waqf Board, and its decision is final. Essentially,
Waqf is the police,
the lawyer,
and the judge.
If you cannot convince the Waqf Board that the land is yours, you’ll be asked to vacate it. And you can’t go to a civil court; you must go to the Waqf Tribunal.
Section 83:
Tribunals have two judges (religion not specified) and one eminent Muslim. If you lose in the Tribunal, you have few options. Here comes another twist: Section 85 states that the Tribunal’s decision is final.
No civil court (including the Supreme Court or High Courts) can overrule the Tribunal’s decision.
However, in May 2022, the Supreme Court struck down this provision in the Jindal Saw case in Rajasthan, affirming its authority to interfere in any decision.
More Provisions of the Waqf Act
Sections 54 and 55:
If the Waqf Board claims your land as Waqf, they can label you an encroacher and instruct the DM or SDM to remove you, who are obligated to comply.
In 2005, the UP Waqf Board claimed the Taj Mahal against the ASI but lost in the Supreme Court. They also invoked the Waqf Act in the Gyanvapi case but were unsuccessful.
Powerful individuals can hire costly lawyers to challenge such claims in the Supreme Court, but what about the common person?
In Tamil Nadu, Waqf claimed an entire village, asserting that it’s not their responsibility to prove ownership but the duty of the landowner to prove it isn’t Waqf.
Questioning the Waqf Act’s Existence in a Secular Country
- Why is there no equivalent Act for Hindus, Christians, or Sikhs?
- If a Christian, Sikh, or Jain encroaches on Hindu land, they must go to a civil court, but if a Muslim encroaches on land from another religion, it’s directed to the Waqf Tribunal.
Why this privilege for only one religion?
Due to this Act, Waqf has become the wealthiest body in India, controlling 700,000 acres with a market value of ₹12 lakh crore. They rent properties, earning crores, which funds their community initiatives and legal cases. The government also provides financial support.
You can read the full Waqf Act of 1995 on the Indian Kanoon website or the Minority Ministry website.
Key sections to review: 3(r), 4, 6, 7, 11, 19, 23, 29, 30, 40, 77, 83, 85, 99.
The Waqf Board has administrative, supervisory, and judicial powers, with enforcement lying with local authorities (often non-Muslims). However, as demographics shift among IAS and IPS officials, the Waqf Act’s impact could grow even stronger.
The Waqf Act also potentially violates Article 14 of the Indian Constitution, which forbids any religious act that infringes on the rights of other religions.
In 1995, Congress indirectly granted significant powers to one community with a blank check. The Waqf Act is that check.
Amend the Waqf Act of 1995 now.
