Why in the News?
On Wednesday, the Supreme Court raised concerns about certain parts of the Waqf (Amendment) Act, 2025.
What provisions of the Waqf (Amendment) Act, 2025 are under Supreme Court scrutiny?
- Derecognition of “Waqf-by-user” Properties: The Act removes recognition of properties declared Waqf through long-standing community use without formal documentation. Eg: Jama Masjid in Delhi, built centuries ago without a registered deed, is a Waqf-by-user property that may lose its legal status.
- Inclusion of Non-Muslims in Waqf Bodies: The Act allows non-Muslims to be appointed as ex-officio members in the Central and State Waqf Boards. Eg: A Hindu bureaucrat could be appointed to a Waqf Board that oversees Islamic charitable endowments.
- State Power to Decide Waqf Status: The Act empowers a government officer to determine whether a property is Waqf or government-owned and restricts its use during inquiry. Eg: A dargah used by the community for generations may be prevented from religious use while the officer assesses its legal status.
- Religious Identity Condition for Creating Waqf: The Act requires an individual to be a practising Muslim for at least five years to dedicate property as Waqf. Eg: A recent Muslim convert wanting to donate land for a madrasa may be barred if they haven’t completed five years in the faith.
Why did CJI Khanna raise concerns over derecognising Waqf-by-user properties?
- Historical Origin Without Documentation: Many mosques and Waqf properties were established centuries ago, long before land registration laws existed, making it impossible to produce formal documents today. Eg: Jama Masjid, constructed in the 17th century, lacks a registered sale deed but has been in religious use for generations.
- Established Legal Recognition in Earlier Laws: Previous versions of the Waqf Act recognised Waqf-by-user, and removing this category retroactively undermines settled legal rights and community practices. Eg: Properties that were protected under earlier Waqf Acts may now be denotified, leading to legal uncertainty and community unrest.
- Risk of Large-Scale Disputes and Displacement: The derecognition could lead to widespread property disputes, potential communal tensions, and loss of religious spaces vital to Muslim communities. Eg: In states like West Bengal, such provisions have already triggered protests and violence over fears of losing religious sites.
Who can be ex-officio members in Waqf bodies as per the CJI’s interim proposal?
- Non-Muslims Permitted as Ex-Officio Members: CJI Khanna suggested that while all appointed members of Waqf Boards and the Central Waqf Council should be Muslims, non-Muslims could serve as ex-officio members. Eg: A non-Muslim District Collector could be included in a State Waqf Board as an ex-officio member due to their administrative role.
- Maintaining Muslim Majority in Waqf Bodies: The proposal aims to ensure that the religious character of Waqf institutions is preserved by maintaining a Muslim majority among members, with non-Muslims participating only in an ex-officio capacity. This approach seeks to balance administrative inclusivity with religious autonomy. Eg: In a 22-member Central Waqf Council, if 8 members are Muslims and 2 are non-Muslim judges serving ex-officio, the inclusion of additional non-Muslim members could shift the majority, raising concerns about the council’s religious representation.
How did the petitioners argue that the Act violates Article 26 of the Constitution?
- State Cannot Restrict Religious Institutions or Charitable Intentions: The petitioners argued that Article 26 guarantees the right to establish and maintain religious and charitable institutions. The new Act mandates a person to prove they have been a practising Muslim for five years before declaring a Waqf, which interferes with this right. Eg: If a devout Muslim wishes to dedicate their land for charitable Islamic purposes but cannot prove five years of religious practice, their right under Article 26 is restricted.
- Disrupts Traditional Waqf Practices: Recognizing Waqf-by-user dismisses historical Waqfs without documents, disrupting long-standing religious practices. Eg: A 17th-century mosque used by the community could be denotified despite its religious use.
- Enables Excessive State Interference: Giving the state power over Waqf status and allowing non-Muslims in Waqf bodies undermines community autonomy. Eg: A religious property may be declared government-owned without judicial review, violating institutional independence.
Way forward:
- Preserve Historical Waqf Rights: Legal provisions should be revised to recognize and protect Waqf-by-user properties, ensuring that historically significant religious sites are not unduly denotified, thereby maintaining continuity with longstanding community practices.
- Ensure Religious Autonomy in Waqf Management: The state should limit its interference in Waqf management by maintaining Muslim-majority representation on Waqf bodies while allowing non-Muslims to serve in an ex-officio capacity, balancing inclusivity with respect for religious autonomy.
Mains PYQ:
[UPSC 2024] Discuss India as a secular state and compare with the secular principles of the US constitution.
Linkage: Secular nature of the Indian state and its interaction with religious institutions and laws governing them, such as the Waqf Act. The debate over the amendment and the Supreme Court’s intervention highlight the complexities of the state’s role in religious matters within a secular framework.
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