Opinion Protests against Waqf Act: Fear and polarisation

The immediate concerns of restoring peace, providing relief to victims and reasserting the rule of law in the areas disturbed by communal violence in West Bengal’s Murshidabad district, should not distract us from addressing the root cause of such conflicts and violence. Since 2014, many of the legislative and executive initiatives of the union government have drawn criticisms regarding contraventions of the secular and federal principles enshrined in India’s Constitution The abrogation of Article 370, construction of the Ram Mandir, the NRC in Assam, the enactment of the CAA 2019 and efforts to implement the Uniform Civil Code (UCC), initiated one after another, have adversely impacted India’s more than 20 crore Muslim population. The Waqf Amendment Act has added salt to those injuries. However, in West Bengal, the misunderstanding about the Waqf Act has furthered the tensions. To dispel the misconceptions, one first needs to focus on the fine print of the legislation.

Many provisions of the Bill seem to contravene the fundamental rights of equality before the law, freedom of conscience and religion and the federal principle. While renaming the law as Unified Waqf Management, Empowerment, Efficiency and Development Act, the amendment legislation actually redefines what is “waqf” and brings about a drastic overhaul of the entire management system of waqf properties — which are religious and charitable endowments of a permanent nature under Muslim personal law, including mosques, madrasas, orphanages, graveyards, dargahs, Idgahs etc.

Before the amendments, the Waqf Act of 1995 entrusted the management of waqf assets to state-level waqf boards, composed of elected representatives as well as representatives from the government and recognised Muslim organisations in each state. While waqf boards had powers to conduct surveys and inquiries through survey commissioners and settle waqf claims, dispute resolution was undertaken by state-level waqf tribunals, with their decisions justiciable only in the higher courts. The central waqf council played an advisory role and provided policy guidance.

The previous version of the law also allowed any person to dedicate any movable or immovable property as waqf. However, the new act stipulates that a waqf endowment can only be made by a “person showing or demonstrating that he is practising Islam for at least five years, of any movable or immovable property, having ownership of such property and that there is no contrivance involved in the dedication of such property”. How would a person demonstrate that she/he is practising Islam for at least five years? Who would issue or verify such certification? Moreover, how does a person demonstrate that there is no “contrivance” involved in the dedication of a property as waqf?

The new waqf law has nullified “waqf by user” and all claims of waqf boards on what is considered to be “government property”. All such waqf properties declared before the commencement of the law would have to be delisted. Powers of inquiry and survey have been transferred from the survey commissioners and waqf boards to district collectors. Collectors, being civil servants, cannot be expected to be neutral players when there is a property dispute between the government and waqf boards. Taking away the powers of survey and inquiry strikes at the root of the autonomy of the waqf boards.

The new law also reconstitutes the central council and state waqf boards on the basis of nominated members replacing elected members; and allows a significant increase in the number of non-Muslim members in the central waqf council and state waqf boards, including the CEOs. These changes leave the waqf council without any functional autonomy.

The new act enables the creation of a new portal and database by the central government where every waqf property across the country needs to be mandatorily re-registered with all necessary documents, accounts, audits and other details. This mandatory re-registration process has also caused widespread concern regarding large-scale alienation or diversion of existing waqf assets by excluding them from the centralised portal, on the basis of more stringent criteria for documentary evidence. .

Such serious interference with the management system of waqfs violates Article 14 of the Indian constitution, which guarantees equality before the law, Article 15 which prohibits discrimination on grounds of religion, Article 25 which bestows the right to freely profess, practice and propagate any religion and Article 26 which confers every religious denomination the right to manage its own affairs in matters of religion.It is noteworthy that such new conditions and criteria are being imposed only in the case of waqf and not in the case of endowments for other religious denominations.

Additionally, since the bulk of waqf assets in different states comprise land, the takeover of their registration and management by the centre through the new portal and database does not concur with the Seventh Schedule under Article 246 of the Constitution where “rights in or over land” is enlisted as a state subject.

Apprehensions regarding alienation and diversion of waqf properties have justifiably increased with the operationalisation of the new Waqf law. India’s Muslim community has shown remarkable restraint over the past 10 years. Defence of the Indian Constitution became the leitmotif of the countrywide movement against NRC-CAA 2019. Muslim women carrying the national flag led the peaceful dharnas till the pandemic and lockdown forced an abrupt halt in 2020. It is imperative that the budding movement protesting the unconstitutionality of the Waqf Amendment Act, 2025 in West Bengal and elsewhere, shun violence and adhere to peaceful methods, drawing inspiration from the year-long farmers’ movement of 2020-21 which was successful in getting the three farm laws rescinded. The constitution should be resolutely defended, through constitutional means.

The writer is an economist and activist