The Waqf Act under judicial scrutiny: Demand for uniform law for religious endowments

Lalit Shastri

During the hearing of a petition against certain provisions of The Waqf Act filed by Ashwini Kumar Upadhyay, who is a senior lawyer, the Supreme Court last Monday, 19 September 2022, observed that the law being questioned is regulatory in nature and if it is struck down, it would only benefit the encroachers.

This observation by a bench of the apex court headed by Justice K.M. Joseph and comprising Justice Hrishikesh Roy is confounding indeed. Obviously the Waqf Act was not enacted to keep the encroachers out. And as far as the menace of encroachment is concerned, we already have Section 441 of the Indian Penal Code to deal with the problem. The law is common for all citizens and any citizen or organisation in India confronted with the problem of encroachment is supposed to seek (Police) action under Section 441 of the IPC. Also it is the responsibility of the administrative machinery/enforcement authorities to keep the menace of encroachment under check.

It needs to be stressed in no uncertain terms that the Supreme Curt should desist from making observations during the hearing of a petition that take away the objectivity of the case and helps one or the other party in building and promoting a narrative – of course through the media – to suit their own interest or to maintain status quo.

Regarding the apex Court’s observation that the law being questioned is regulatory in nature and if it is struck down, it would only benefit the encroachers, it would be appropriate to point out that Section 441 deals with Criminal trespass or call it encroachment. Section 441 spells out in clear terms – Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. Tresspassing or encroaching upon someone’s property is a Cognizable offence triable by any Magistrate.

Section 447 of IPC prescribes punishment for criminal trespass – Whoever commits criminal trespass shall be punished with imprisonment of either descrip­tion for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.

The Supreme Court bench also questioned the petitioner for putting his challenge down to religion.

The apex court bench observed: “we should not bring religion as a ground to strike down the law.” One wonders how a petitioner can object to provisions of The Waqf Act enacted to provide for the better administration of Auqaf and for matters connected therewith by comparing it with provisions of separate laws to administer Hindu temples and their properties without the mention of religion. That too, while raising the issue of “discrimination” vis-a-vis laws to regulate “religious endowments and their secular objectives”.

The court said during the hearing of the petition by Upadhyay that it had to undertake research and list down laws of different States for governing Hindu religious institutions and endowments as there was some wrong reporting in sections of media.

The petitioner responded by telling the court that on the one hand we have The Religious Endowment Act, 1863; Indian Trustees Act, 1866; Indian Trust Act, 1882; Charitable Endowment Act, 1890; Official Trustees Act, 1913; and Charitable & Religious Act, 1990 that are made to manage trusts and religious endowments of all communities, except for Muslims who have the Waqf Act. His main question in this context was why there was no single law to regulate Hindu religious properties.

The petition by Ashwini Kumar Upadhya is reflective of the discontent brewing among a large section of Hindus, especially groups advocating their cause. Going by viral posts and messages on social media, one has reason to believe there is simmering discontent and even anger among a cross-section of the Hindus as the Waqf Board controls and administers Islamic religious properties while temples, large number of them, are State controlled.  

The apex court has posted the matter for hearing on October 10.

Upadhyay has also filed a petition in the Delhi High Court. It points out that the Waqf Act is enacted to secure fundamental right to practice religion guaranteed under Articles 25 and 26, it must be in consonance with Articles 14 and 15 and should cover all minorities.

Upadhyay has urged the Court to declare that Centre can enact only Uniform Law for Trust and Trustees, Charities and Charitable Institutions, and Religious Endowments and Institutions as enumerated in Item 10 and 28 of the List-III of Seventh Schedule in consonance with Articles 14-15; and can’t make separate law for Waqf and Waqf properties.

It is also his case that Sections 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 are manifestly arbitrary, irrational and offend Articles 14-15 of the Constitution of India, hence void and inoperative. Further, it is his contention that alternatively, the Court should direct and declare that the dispute relating to religious properties shall be decided by the Civil Court only under Section 9 of the Civil Procedure Code 1908, and not by Waqf Tribunal.

Upadhyay has urged the High Court of Delhi to direct the Centre or Law Commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’ in spirit of Articles 14-15 and publish it for public debate and feedback.

Till March 2022, records of 8,01,954 immovable Waqf properties have been entered in (Waqf Assets Management System of India (WAMSI) Registration Module and GIS Mapping of 2,53,628 Waqf properties have been done.

For the first time 3,32,344 records of Waqf estates have been digitized. In addition, the guidelines of Qaumi Waqf Board Taraqqiati Scheme (QWBTS) has been revised and a provision has been made for providing financial assistance to State Waqf Boards (SWBs) for deployment of Retired Tehsildars/Retired Patwaris as a Mutation Assistants to complete the process of mutation of un-mutated Waqf properties.

Further, under the scheme financial assistance has also been provided to SWBs for deployment of some other manpower, namely, Assistant Programmer, GIS-Digitization supervisor, Mutawalli Change Support Assistant, Mutawalli Return Support Assistant, Leasing Support Assistant, Litigation Tracking Support Assistant, Zonal Waqf Officers,  Survey Assistant and Data Entry Operator, setting up of Video Conferencing Facility, maintenance of Centralized Computing Facility (CCF) & E-office Solution for better administration of SWBs.

The Waqf Act is applicable to all Waqf [auqaf] whether created before or after the commencement of the Act:

As per Section 32 of The Waqf Act, Central Government has a limited role and general superintendence of all Waqf properties in a State is vested with the State Waqf Board (SWB) and the Waqf Board is empowered to manage the Waqf property.

32. Powers and functions of the Board.—(1) Subject to any rules that may be made under this Act, the general superintendence of all waqf in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the waqf under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such waqf [auqaf] were created or intended.

Section 6. Disputes regarding [auqaf] – (1) If any question arises whether a particular property specified as [waqf] property in the list of [auqaf] is [waqf] property or not or whether a [waqf] specified in such list is a Shia [waqf] or Sunni [waqf], the Board or the mutawalli of the [waqf] or [any person aggrieved] may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of [auqaf]: [Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section (6) of section 4].

(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any [waqf] shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

The list of [auqaf] shall, unless it is modified in pursuance of a decision of the Tribunal under sub-section (1), be final and conclusive.

On and from the commencement of The Waqf Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1).

Under Section 37 of the Act dealing with Register of [auqaf] – 3[(1)] The Board shall maintain a register of [auqaf] which shall contain in respect of each [waqf] copies of the [waqf] deeds, when available and the following particulars, namely:—

(a) the class of the [waqf];

(b) the name of the mutawallis;

(c) the rule of succession to the office of mutawalli under the [waqf] deed or by custom or by usage;

(d) particulars of all [waqf] properties and all title deeds and documents relating thereto;

(e) particulars of the scheme of administration and the scheme of expenditure at the time of registration;

(f) such other particulars as may be provided by regulations.

4[(2) The Board shall forward the details of the properties entered in the register of auqaf to the concerned land record office having jurisdiction of the waqf property.

(3) On receipt of the details as mentioned in sub-section (2), the land record office shall, according to established procedure, either make necessary entries in the land record or communicate, within a period of six months from the date of registration of waqf property under section 36, its objections to the Board.]

Section 40 of the Act – Decision if a property is wakf property

(1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf it may, after making such inquiry as it may deem fit, decide the question.

(2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.

(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is wakf property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is wakf property, call upon the trust or society, as the case may be, either to register such property under The Waqf Act as wakf property or show cause why such property should not be so registered: Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered.

(4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal.

Section 41. Power to cause registration of [waqf] and to amend register.—The Board may direct a mutawalli to apply for the registration of a [waqf], or to supply any information regarding a [waqf] or may itself cause the [waqf] to be registered or may at any time amend the register of [auqaf].


Waqf in Pakistan

After the partition of India and creation of a separate State for Muslims, which resulted in mass genocide and the biggest displacement of people in human history, the waqf system in Pakistan maintained many of the characteristics of the situation in India. Before April 1959 the following waqf acts were in force:

The Punjab Muslim Awqaf Act, 1951

The Qanoon-e-Awqaf Islami, 1945. (Former Bahwalpur State)

The North West Frontier Province Charitable Institution Act 1949

Mussalman Waqf Act (Sind Amendment), 1959

Mussalman Waqf Act (Bombay Amendment), 1935

In 1959, the Government of Punjab promulgated the West Pakistan Waqf Properties Ordinance, which granted the government the right to dispossess a mutawalli. This was followed in 1960 by the Awqaf Ordinance and West Pakistan Waqf Properties Rules, which effected wholesale nationalisations. According to the Rules, the endowments passed into the hands of the State, thereby burying the Mussalman Waqf Validating Act, 1913. It is to be noted that Mohammad Ali Jinnah, the founder of Pakistn had piloted in the Imperial Legislative Council the Mussalman Wakf Validating Act, 1913.

The main motives for centralization of the Waqfs in Pakistan can be summarised as follows:

  • The administration wanted to control the religious elements in the country since waqfs were often associated with religious activities
  • The state had an eye on the financial resources of the endowments
  • Centralization meant bureaucratisation of the religious establishment.

By the year 1984, a statistical analysis covering the provinces of Punjab, Sindh, North West Frontier Province, Baluchistan and the Islamabad Capital Territory had revealed that 344 shrines, 648 mosques, 31,913 acres of culturable lands, 48,188 acres of unculturable lands 2,215 shops, 1,869 houses had been nationalised (Malik, 1990: 72).

In India, the above policy has been followed vis-a-vis the Hindu religious shrines and properties but the independence, autonomy and overriding powers of the waqfs have been protected by the discriminatory Waqf Act.

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