As the Waqf (Amendment) Act, 2025, comes into force, it kicks in a new sense of a concerted move to drastically change the character and alter the status of Waqf property and wrest complete control over the Waqf property.
Waqf is continuing charity, with land donated in the name of God for charitable purposes, Sadqa-e-Jaaria. Sadqa is Charity and Jaaria is continuing.
Once land is made out for charitable purposes, and that, too, in the name of God, it can neither be alienated, nor its status altered by way of sale, gift or transfer. But the new Waqf Act facilitates conversion of Waqf land into private or Government property. The Modi Government enacted new Waqf (Amendment) Act, 2025, comes as a huge surprise, as it aims to wrest control over the Waqf property across the country.
Waqf property issue was flagged for the first time by Prime Minister Indira Gandhi in her famous 15-Point Programme for Minorities, which was in the form of an open letter to State Chief Ministers on May 11, 1983. She said: “Apart from the general issues to which I have referred, there are various local problems, which develop into needless irritants to Minorities. For instance, encroachments of Waqf properties and graveyards has led to protests and grievances in some places. Suitable steps should be taken to deal with such problems on an expeditious and satisfactory basis.”
Far from resolving the prolonged problems, the new law only seeks to exacerbate the problems faced by the Minorities.
The new law goes against the grain of the Indian Constitution. It militates against the Supreme Court pronouncement that once Waqf, always Waqf.
Simply put, under the Indian Constitution, the Government cannot defray expenses for religious purposes, like running Masjid and Madrasa and upkeep of graveyards. It is here that the Waqf property assumes significance, where the community steps in by contributing through the Waqf for religious and charitable purposes.
Besides, the Constitution, under Article 26, guarantees the Right to Freedom of Religion to every religious denomination or section to manage its own affairs, including establishing institutions, managing religious affairs, owning property and administering it.
This very Constitutional right is being undermined and flagrantly violated in the provisions of the new Waqf (Amendment) Act, 2025. For instance, two non-Muslims are to be appointed to the Central Waqf Council, to the State Waqf Boards and to Waqf Tribunals. Requirement that Waqf Board Chief Executive Officer must be Muslim has been dispensed and done away with.
Compare this with the Tirumala-Tirupati Devasthanam (TTD) Trust Board Resolution passed recently to terminate the services of all non-Hindu employees in the TTD.
The Waqf phenomenon is not peculiar only to Islam. Hinduism, too, has the Hindu Religious & Charitable Endowments Department. Far from the Waqf property being the third largest, after Railways and Defence, such a distinction probably goes only to Hindu Religious & Charitable Endowments, which controls around 10 lakh acres just in Tamil Nadu, Telangana and Andhra Pradesh, while lakhs of more land is there, from Vaishno Devi in Jammu & Kashmir in the North. to Sree Ananta Padmanabha Swamy Temple in Thiruvanantapuram in Kerala in the South. In comparison, the total Waqf property all over the country may be around six lakh acres.
Such deliberate misinformation, far removed from facts, is spread on purpose to promote polarization.
The new Waqf Act is based on misconceptions. For instance, there is a common notion that the Waqf Board has ownership rights over Waqf property. Fact of the matter is that Waqf Board only administers, and does not own, Waqf property.
To divest the Waqf Board of its only role of administering the Waqf properties, the Government, under the new law, designates District Collector as the deciding authority in matters of disputes between the Government and the Waqf property.
Now, this is not only flawed, but militates against the basic cannons of jurisprudence. First of all, when the Government is party to dispute, it cannot sit in judgment over it. In such a situation, determination of Waqf property is best left to a judicial or quasi-judicial body, say, like the Waqf Tribunals.
Another misconception, again deliberately promoted, is that Waqf Board arbitrarily determines and appropriates any property by declaring it as Waqf property. Union Minority Affairs Minister Kiren Rijiju came up with cheap jibe that but for Prime Minister Narendra Modi coming to power, Waqf Board would have claimed Parliament as Waqf property.
This notion is wantonly promoted by the ruling Dispensation at the Centre that the Waqf Boards arbitrarily declare properties as Waqf. In fact, Waqf Board can, at best, only flag an issue for determining Waqf property. But, it neither has the mechanism, nor is it empowered, to determine Waqf property.
There is a well laid out judicial procedure for the determination of Waqf property. The Survey Commissioner surveys the disputed land, examines revenue records and other related and relevant documents and conveys his findings to Government. Only after such a decision is approved by the Government and it is duly notified in the Gazette, that the land is returned to Waqf. There is no scope for arbitrariness in the entire issue.
What is more, the Waqf Board is packed with Government nominees; Waqf Tribunals are packed with Government law officials; Survey Commissioners are Government officials. Where on earth is the scope for arbitrary actions by Muslims, as it is sought to be made out?
The entire exercise of pushing through the Waqf (Amendment) Act, 2025, is based on a string of misconceptions and misgivings about Waqf and its property. This issue is being raked up, with a view to targeting the rights of Muslims, apart from wresting control over Waqf land, besides pressing ahead with communal polarization.
Major issue seems to be to gain control and eventually appropriate Waqf property, following the Abolition of Waqf by User. It is hard to come across a formal Waqf Deed for any Waqf creation, as there was no concept of registration of Waqf property for 1,000 years. The first regulation of Waqf property came in 1906.
To illustrate the point, Babri Masjid in Faridabad in Uttar, was Waqf by User, where for 400 years, the Masjid existed and Namaz was being offered. But there is hardly any formal documentation available. Similarly, Jama Masjid in Delhi has existed for 400 years, but, surely there is no formal document. The Government can easily initiate proceedings to appropriate such land under the new law.
Secondly, Law of Limitation, which was not applicable to Waqf properties, has now been made applicable. By means of Adverse Possession, Waqf properties can be sought to be appropriated.
Waqf properties have been in existence for 1,000 years. Waqf in India is traced up to the Delhi Sultanate in 1206. It continued through other dynasties till 1526, when Mughals, too, continued it till 1857. Following the takeover by the British Crown, the British Government tried to regulate it, for the first time, in 1906.
Soon after the Indian Independence, Central Waqf Act was passed by the Nehru Government in 1954. In 1995, Central Waqf Act was passed by P V Narasimha Rao Government, which is considered more comprehensive. In 2013, the Congress-led UPA Government brought Amendments based on K Rahman Khan-headed Parliament Select Committee Report.
There are categories of Waqf, like religious, pious and charitable. Over a prolonged period of neglect, with tardy work by Waqf Boards, several nagging issues have cropped up, including land grabbing by unauthorised occupants; disputes with the Government over ownership; lack of proper follow up action by the Waqf Boards; and absence of mechanisms to remove encroachers, have all resulted in losing control over huge tracts of Waqf property.
One only hopes the Supreme Court will deliver justice by declaring Waqf (Amendment) Act, 2025, ultra vires the Constitution.
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