The Waqf Debate and The Rule of Law

The Waqf Acts in India, from 1954 to 2013, granted sweeping powers to various Waqf Boards, state and central, across the country. The need to reform them has long been felt in sections of the country.

Waqf, loosely defined, is a charitable endowment made in perpetuity in Allah’s name. According to figures provided by Home Minister Amit Shah on the floor of Parliament, Waqf Boards across the country manage properties amounting to 39 lakh (3.9 million) acres today, up from 18 lakh (1.8 million) acres in 2013. This rapid increase in the size of the endowments was ascribed to multiple factors dating to the 1954 Waqf Act.

The Waqf Board had essentially been empowered to act as its own parallel system of Government wherein its board, has its own legislature, its surveyor, its executive, and its tribunal, and its judiciary (as Prof. Anand Ranganathan notes). It may, of its own accord, designate certain property as Waqf (Sec 40 of the Waqf Act, 1995), declare the occupant of the property to be an ‘encroacher’ (Sec 54) and the dispute can only be decided by a Waqf Tribunal which is outside the jurisdiction of any civil court (Sec 6, 7, 83, 85 read with a recent Supreme Court Judgement). This declaration of Waqf may be verbal (‘Waqf by User’), and the act does not specify a procedure to notify the owner of the property of such declaration in case the owner is an individual. If an association or society owns this land, the Government body regulating the society is to be notified (but not the society itself !).

Furthermore, there is no Statute of Limitations on the powers of the Waqf Board (Sec 107). However, the owner of the property has only one year to challenge the Waqf declaration, though they may have never been notified about it !

As Abhijit Iyer-Mitra notes in his letter to the Waqf JPC, these provisions are in direct contradiction with the principles of natural justice, negate the right to the ownership of property, violate the evidence act, and reverse the jurisprudence where the victim has to prove ownership while the extorter has to prove none. No modern democratic country would tolerate the existence of a parallel power structure that can extend its jurisdiction by the power of its own irreversible decisions.

In a more practical sense, it is very easy for a rogue actor within the Waqf System to use the draconian provisions of this Act to wage lawfare against common citizens. Given the large caseload in our judicial system and the concomitant delays, it is a surefire way of subjecting a person to a long-drawn and expensive legal process, which may, in the worst case, end in their losing a property in their possession, without compensation, on account of events which may have occurred centuries before their birth ! A long-running truism in India is that the process is the punishment.

The above possibility is not theoretical. The Waqf Board issued a notice to villagers in Govindpur, Bihar to vacate the land which they claim to have received by way of inheritance within 30 days according to a media report. The Archeological Survey of India (ASI) recently reported that as many as 120 protected monuments are claimed by state Waqf boards as per a media report; this list probably also includes the 1,500-year-old Sundareswarar Temple in Thiruchenthurai, Tamil Nadu. Public assets across India have Waqf claims on them, including the Hyderabad International Airport.

Legal luminary Vishnu Shankar Jain, in a long thread on X featuring technical legal reasoning, has argued that the current changes are not sweeping enough. He also made a media statement here. Among his objections : Not only should Government lands be exempt from Waqf declarations, but also ASI monuments, association properties, and individual properties belonging to non-Muslims.

(Courtesy : Excerpts from an Article on indiafacts.org.in; 9.4.2025)

Waqf boards across the country manage properties amounting to 39 lakh acres today, up from 18 lakh acres in 2013 !