The latest apple of discord between the government of the day and the Muslim community of India are the two Waqf (Amendment) Bills introduced in Parliament in August this year. The veracity of their aims and objects, professed and alleged, is to be assessed keeping in mind the history of wakf management in the country.
Wakf, an Arabic expression, indicates the disposition of property by its owner for religious and charitable purposes, either by way of a gift to become effective instantly or under a will so as to take effect after his death. Mosques, dargahs, and graveyards are all wakfs in this sense.
Legal regulation of shrine management in India began during British rule with the enactment of the Charitable and Religious Trusts Act 1920 equally applicable to all communities. Three years later came the first community-specific law in this area — the Mussalman Wakf Act 1923. The Government of India Act 1935 placed religious and charitable endowments in the concurrent jurisdiction of the central and provincial legislatures. Thereafter, local wakf Acts were enacted in Bengal, Bihar, Uttar Pradesh and Delhi.
After Independence, the Constitution of India placed religious and charitable endowments concurrently in the hands of the central and state legislatures. However, Parliament never enacted any central law to regulate the management of Hindu shrines and left it entirely to the states. Enactment of local laws on the subject began with the Bihar Hindu Religious Trusts Act and the Madras Hindu Religious and Charitable Endowments Act, enforced during 1950-51, and by now, there are similar laws in most states. There are also special laws in force in certain states to regulate the management of major temples. There are also special laws in force in certain states to regulate management of major temples like the Jagannath temple in Odisha, Kashi Vishwanath in Varanasi, Sri Venkateswara temple in Tirupati and Mata Vaishno Devi in Jammu and Kashmir.
For the Muslim community, Parliament enacted a general wakf Act in 1954, and a special law in 1955, for the biggest Muslim shrine in the country — the Dargah of Sheikh Moinuddin Chishti in Ajmer. The former Act laid down that it would gradually replace all the local laws on management of wakfs. This did not happen till the enactment of a massive Wakf (Amendment) Act in 1984. It was, however, not put into force till 1995 when Parliament enacted a new comprehensive wakf Act. After its enforcement, all the local wakf Acts were gradually repealed, except those of Jammu and Kashmir due to the special status of the former state under the Constitution.
In 2013, the Wakf Act of 1995 was subjected to massive amendments. Apart from introducing drastic changes in the Act, it changed the spelling of the word wakf to waqf and replaced its plural wakfs with the Arabic expression auqaf. This pedantic exercise was absolutely unnecessary and led to terrible confusion. The words wakf and wakfs have been used in hundreds of other Acts and thousands of judicial decisions. Even in the laws of the Arabic-speaking countries, the word is spelt as wakf.
Known since then as the Waqf Act, the 1995 law was further amended in 2014 by the Waqf Properties (Eviction of Unauthorised Occupants) Act. Five years later, the Jammu and Kashmir (Reorganisation) Act 2019 extended this Act as amended up to date in both the newly created Union Territories, repealing all the local laws on the subject.
On the whole, the law of India relating to wakf management is in a pitiable mess. It has generated a huge body of case law consisting of hundreds of Supreme Court and high court decisions. To claim that there is no corruption in the management of religious places belonging to any community amounts to shutting one’s eyes to the glaring ground reality. In many cases, the trustees and caretakers of religious places have misused their authority and misappropriated the resources for unlawful or unauthorised purposes. The State cannot perpetually remain a silent spectator to this scenario.
The presumption of any community that its religious places enjoy protection under the religious freedom clauses of the Constitution of India is entirely baseless. Article 26 does entitle every religious denomination to manage its own affairs in matters of religion and to acquire, own and administer property. This freedom is, however, not absolute or unconditional and is not excluded from the purview of the clarification provided in the preceding article that the citizens’ right to freedom of religion does not “prevent the State from making any law for regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice”.
During the last few years, there have been moves to amend or even repeal the Wakf Act of 1995 and Bills aiming at this were moved in Parliament. Now the government has come out with two new Bills. One of these is to repeal the old Mussalman Wakf Act of 1923. This outdated Act should in fact have been repealed by the Wakf Act 1995. The delayed action by the present government in this direction is welcome.
The other Bill is to make drastic changes in the 2014 version of the Wakf Act of 1995. It has led to a great controversy and Muslim leaders are opposing many of the changes it proposes. In view of the present atmosphere prevailing in the country, their views and suspicions cannot be called imaginary and brushed aside in their entirety. As the management of the majority community’s religious places all over India is still being regulated by state laws only, it will be most equitable to follow the same pattern for the wakfs as well. This will be in accord with the equality provisions of the Constitution and its scheme of division of powers between the Centre and states. Once the states enact their own wakf Acts, the central Wakf Act of 1995 with all of its later amendments may certainly be repealed.
Tahir Mahmood is former chairman, National Minorities Commission, and former member, Law Commission of India. The views are personal
