Waqf Amendment Act: Divide and Rule Policy Of BJP

The biggest challenge presently faced by waqfs in India is that they have lost the battle of perception even before the legal battle commences. A general public perception has been created that waqf is a unique and flawed concept and requires legal overhaul. It is from this lens that the entire dispute is seen, and even those who are able to see the communal agenda behind the Waqf Amendment Act end up conceding that some change to the law was required.

In Islam, it is said that your account book of good deeds and sin closes when you die, and will now be examined only on the day of judgement. The only exceptions to this—two things which continue to bring you reward even after your death—are children well brought up according to religion, and waqfs. Since children have never been easy to raise or to control, dedicating properties by way of waqf has been quite popular amongst Muslims. However, this is not out of the ordinary in the Indian context. Dedicating property to temples and mutts has been popular among Hindus and Jains as well. Much has been made over the course of this debate of the fact that 8.7 lakh properties spanning 9.4 lakh acres across the country are controlled by Waqf Boards. Just to put things into perspective, 4.67 lakh acres of land belonging to temples and mutts is under the control of the Commissioner of Hindu Endowments in Andhra Pradesh, 4.78 lakh acres in Tamil Nadu and 91,827 acres in Telangana. Thus, land belonging to temples and mutts in just three states exceeds this 9.4 lakh acres figure by almost 1 lakh acre. In a country where we are obsessed with religion as a people, there is nothing unusual about these figures. Even the Catholic Church owns 2-3 lakh acres of property in India despite the relatively small size of the Christian community here.

Charitable institutions and religious endowments are included in the Concurrent List in Schedule VII of the Constitution, meaning the subject is within the legislative competence of both the Central and the state governments. Both waqfs and Hindu endowments were earlier regulated under the respective customary/personal laws, and both subsequently came to be regulated by statutes enacted for this purpose. While waqfs came to be regulated under central waqf legislations of 1913, 1923, 1954 and 1995, Hindu religious and charitable endowments are governed by laws enacted by state governments. Sikh religious and charitable endowments are also governed by a central statute, the Sikh Gurudwaras Act, 1925.

Certain features are common across these statutes governing religious endowments. For instance, members of the governing boards, trustees, commissioners of endowments and officers in-charge have to necessarily be Hindus under the statutes governing Hindu religious endowments in Bihar, Odisha, Tamil Nadu and Karnataka, to name a few. In a similar vein is the Sikh Gurudwaras Act, under which members of the Shiromani Gurudwara Prabandhak Committees as well as the Judicial Commission deciding cases under the Act have to necessarily be persons professing the Sikh religion. So there is nothing unusual about the requirement in the Waqf Act that members of the Central Waqf Council and State Waqf Boards should be Muslim. In any event, if the problem supposedly identified is of corruption and mismanagement, surely the logical solution isn’t to have fewer Muslims in-charge of managing these properties. If there in one thing in India that is common to persons of all religions, it is our love for a quick buck on the side.

Let us turn to another aspect that has ignited some debate: the law of limitation in relation to waqfs. Since waqf properties are scattered and the system of their identification and management by the Waqf Boards have not been the most efficient, waqf properties are not very well looked after and, over time, have come to be encroached. This problem of encroachment came up in Parliament at the time that the 1995 Act was being debated. At that time, BJP MP Shri Sangh Priya Gautam proposed that waqf properties be excluded from limitation altogether on the ground that charitable properties which are for the benefit of poor Muslims should not be lost through adverse possession to land grabbers and encroachers. This was how Section 107 came to be introduced into the Act by way of an amendment moved in the Rajya Sabha, although it was not part of the original Bill tabled in Parliament in 1995. In any event, even exclusion of properties of religious endowments from the law of limitation isn’t unique to waqfs. For example, the Tamil Nadu Hindu Religious and Charitable Endowments Act also excludes the Limitation Act. However, only waqfs have been singled out for a change in this law.

Similarly, ‘waqf by user’ is no different from the law applicable in this regard in relation to Hindu religious endowments. Oral dedications of property as well as long use for religious purpose are both recognised grounds for property being considered a religious endowment under the Hindu law.

So if the extent of land under the control of waqf boards is nothing unusual—bearing in mind the extent of land controlled by temples in the country—if the law governing waqfs is no different from laws governing religious endowments of other religions, and Muslim control over their religious endowments is only a natural sequitur of similar exclusive control of other religious communities over their endowments, then what is the hue and cry about waqfs all about? This amendment has actually been occasioned by the multiple suits that have been filed across the country after the Ram Janmabhoomi-Babri Masjid judgement, challenging the status of ancient mosques and dargahs claiming they were built by destroying temples. These disputes are the political currency of the Bharatiya Janata Party (BJP), which first gained prominence on the back of the Ram Janmabhoomi movement and came to power on the promise of building a Ram temple at Ayodhya. Having fulfilled this promise, the BJP, to avoid an existential crisis, has multiplied temple-mosque disputes to give itself continued reason to exist.

Since title documents are not available for these places of worship that were built during Mughal times, the argument of the Muslim side in each of these disputes is that the premises are waqf by long use. The primary purpose of the present amendments is to take away the basis of the argument of the Muslim side by removing the statutory recognition given to long and uninterrupted use as waqf. Incidentally, this was the only basis for title asserted by the Muslim side in the Babri Masjid dispute. This was denied by the Supreme Court on the basis that there were multiple occasions in recorded history, during communal violence in 1855-56, 1858, 1934 and 1949, when possession was forcibly taken away from the Muslims for a period and thus, their use was not uninterrupted. On some other occasions, legal proceedings were initiated by Hindus challenging the right of Muslims over the property. The Supreme Court chose to ignore that each time, possession was restored to Muslims by the British administration as soon as the situation was brought under control, and all legal proceedings initiated were decided in favour of Muslims. This should have actually strengthened the case of the Muslim side as their ownership was recognised and protected by the then existing State administration and judiciary. Instead, the court applied the bizarre logic that these dispossessions and challenges showed break in use, and the interrupted possession of the Muslims paled in comparison to the uninterrupted belief of the Hindus that this was the birthplace of Ram Lala. Now, with this amendment, such legal acrobatics will no longer be necessary and the argument of long uninterrupted use as evidence of the existence of waqf will no longer be available. The problem has been nicked at its root.

A little-known fact is that at the fag-end of 40 days of argument in the Supreme Court, an application was made by the Chairman of the UP Sunni Central Waqf Board saying the Board had arrived at a settlement and wished to give up its case in favour of the Hindu side. This triggered cries of foul play by the Muslim side and allegations of the Chairman of the Board having been compromised. The Supreme Court refused to entertain the application at that belated stage saying that the case would in any event still survive as individual worshipers were also parties. The Yogi Adityanath government gave Y-category security to the Chairman of the Waqf Board after this incident due to the threat arising to his life after what was seen as betrayal of the community by him.

Utilising the learning of the Babri Masjid case, now the problem is sought to be solved once and for all at an institutional level by way of this amendment. Two non-Muslims have to mandatorily be appointed on the Board and a majority of members of both the Waqf Council and the Waqf Boards have to be appointed by the state government without regard to their religion, meaning, they can also be non-Muslim. Thus, the opposite party in these temple-mosque disputes is sought to be replaced by a more pliable body that will be manned by a majority of non-Muslims.

An issue that arises in these disputes that was absent in the Babri Masjid dispute is the Places of Worship Act, 1991, which prohibits the religious character of existing places of worship being altered. That Act had a specific carve-out for the Babri Masjid-Ram Janmabhoomi dispute, but is applicable and is being invoked by the Muslim side in each of temple-mosque cases now being instituted. However, the 1991 Act has another exception: it does not apply to properties declared protected by the Archaeological Survey of India (ASI). This exception is now sought to be exploited to circumvent the protection under the 1991 Act. The dispute over the Sambhal Jama Masjid has, in fact, been crafted as a suit asking the ASI to protect this ancient monument and seeking access for the general public to this heritage site. But for this model to be successful, another obstacle stands in the way. These ancient monuments are also waqf properties and are subject to protection under the Waqf Act. For this purpose, now the amendment excludes monuments protected by the ASI from the purview of the Waqf Act. Thus, the political agenda of weakening the Muslim side in temple-mosque disputes moves one step closer to its goal.

Another set of long-pending disputes is between government agencies and waqf boards where governments have laid claim over waqf properties. For example, there is a dispute concerning 123 waqf properties in New Delhi, which traces back to the British era when the British government acquired lands around the Raisina Hill for constructing their new capital in Lutyen’s Delhi. Muslim religious properties were spared under an agreement with the British government and a Sunni Majlis Auqaf was formed to manage them. Post-Independence, these were transferred to the Delhi Waqf Board, and were later notified in the Delhi Gazette as waqfs in 1970 under the Waqf Act, 1954. However, the Delhi Development Authority and Land & Development Office have been contesting ownership, claiming that all these properties were covered by land acquisition, and this has led to litigation before the Delhi High Court initiated by the Vishva Hindu Parishad. In such disputes too, the hands of the government agencies are sought to be strengthened by this amendment by making an officer of the state government the ultimate arbiter of the disputes and immediately suspending the status of the properties as waqf properties pending inquiry by him.

When one sees the Babri Masjid dispute from the lens of power through history, the transition from the entire structure undisputedly being a masjid till 1857, to a part of the structure being taken over by the Hindu side in 1858, to the entire property being seized in 1949, to a Ram Mandir being constructed in 2024, coincides with the transition of power from Muslim rule to British rule to democratic rule of the majority, and finally the advent of rule of the Hindu right. The Waqf Amendment Act is simply a case of one of the parties in a series of property disputes having come to power, and then tilting the balance in its own favour. In the medieval period, this was done as a matter of right by royal farmans when territories were acquired in wars, but in the modern period, this requires lip service being paid to the rule of law by amendments moved in Parliament.

(Views expressed are personal)

Saiyyad Mohammad Nizamuddin Pasha is a Delhi-based lawyer

This article is part of Outlook’s May 01, 2025 issue 'Username Waqf' which looks at the Waqf Amendment Act of 2025, its implications, and how it is perceived by the Muslim community. It appeared in print as 'Trial By Perception.'