Haider Abbas
THE Waqf Amendment Act-2025, passed by the Parliament, owing to the betrayal of Nitish Kumar and Chandra Babu Naidu to ‘secularism’, has been subjected to an interim stay, by Chief Justice of India Sanjiv Khanna. There were around 100 petitions tagged to the matter, which was taken by Supreme Court on May 5, and is now to be listed on May 15. The Leader of Opposition Rahul Gandhi did not speak a word during the debate in Parliament. His sister Priyanka Gandhi, who is MP from Wayanad, which has 40% Muslims, skipped the vote, despite Congress party whip. So much so for secularism-upholders! PM Narendra Modi took a typical moral high and did not vote. He had to see the visiting Crown Prince from Dubai, and avoided any uncomfortable moment.
The Union government is jittery. The Parliamentary Affairs minister Kiren Rijiju has openly threatened judiciary to not to interfere in government affairs. BJP nominated Vice President Jaideep Dhankar has minced no words to belittle judiciary and has referred Parliament to be ‘supreme’ unlike the SC. His diatribe against judiciary did not halt as he took the same stand on his visit to Lucknow on May 1. BJP MP Nishikant Dubey has attributed CJI to be responsible for the ‘civil-wars’ in the country. BJP has distanced itself from his stand. CJI has stopped government to not to appoint any new member to the Central Waqf Council and state Waqf Boards, and also not to change the character of any Waqf-by-user property either notified or registered before the Act came into force.
‘Waqf by user’ is in the eye of storm. The government with his entire wherewithal alongside millions of social-media outlets who endorse BJP worldview, have full throttle unleashed a campaign against Waqf Board, which obviously is a campaign against Muslims. A perception is being built that Waqf Board is an all marauding body, which can stake claim on any property under the sun, while government looks hapless over it. The reality on the contrary is absolutely against it. Government sits with its huge palatial buildings built on Muslim lands while Muslims look at them in gay abandon!
Amidst this the government has submitted a voluminous 1300 pages affidavit, to wrest in SC, as to how Waqf Boards, across India, have made a stupendous rise of 116% in registration of Waqf properties after the Waqf Amendment of 2013. This needs to be examined threadbare. It may be true that the quantum of Waqf properties have increased, but what leaves a gnawing question is to find out if any new property has been added as Waqf or the property, as shown in 116% rise, is the property which was already a Waqf? CJI has raised questions on the facts given by the government in its counter affidavit. “Yes, you have raised certain points in regards to registration and have given some disputed figures, that will require some consideration.” What if any property has been wrongly registered? Will it be reverted back to the original Waqif (trustee)?
Government, in fact, anyhow wants to kill ‘Waqf by user’ and if not stopped nearly every Dargah, Khanqah, Qabristan, Eidgah, Imambara, Mazar, Yateemkhana, Masjid will have an existential crisis. But why?
The answer lies in the Act Section 3 (C), which has accorded unbridled powers to the designated officer, above the rank of Collector. It is now like District Magistrate (DM) has been made a substitute of the state sovereign power. He is all powerful to exercise his ‘overlordship’ in the area under his territorial jurisdiction. He is king above the king with absolute monarchial powers, handed over to his authority through the Parliament from the biggest democracy in the world. As it was earlier the case , if Waqf Board was to register a property, the concerned opposite party was to approach the Waqf Tribunal. But, now before its registration a nod from DM is necessary. From now onwards, if DM issues a notice or even a suo-moto notice to Waqf Board over any dispute, that very moment, the property will cease to be a Waqf property, until DM, would decide its title. DM will always look towards government echelons. Don’t we know, as to how Faizabad DM KK Nair, did not get removed Lord Rama idols which were kept inside Babri Masjid on December 22/23, 1949. The Act also does not specify, what if DM decides a certain property to be not a Waqf, then such property will be vested with whom? Earlier properties, taken over by state were categorized as Evacuee Property or Enemy property? What would be the new provision?
This Section 3(C) has made Waqf Tribunals stripped of all powers. Clause 5 Section 3A (2) has rendered the concept of Waqf-alal-Aulad as totally redundant. Clauses 4 (IX)(A) and 4(IX) (D) stipulates anyone to make a Waqf, has to be a practicing Muslim for five years, is extremely discriminatory against recent converts and stands in violation to our fundamental rights. Section 3E, debars a Scheduled Tribe to create a Waqf, whereas the fact is, that a ST remains so even if he becomes a Muslim. Clause 44 puts an end to law-of-limitation, which had earlier allowed Waqf Boards to exercise a claim, but will now allow encroachers to have a feast on Waqf properties for ever.
After Section 3(D), hundreds of mosques/Imambaras etc naturally ‘Waqf by user’, already under the Ancient Monuments Act and Archeological Sites and Remains Act, will go out of Muslim domain. They will just stand witness to the coming torments of time, crumble, and then get effaced from earth. But, the ASI sites like Jagannath Puri etc will continue to remain in Hindu hands. Muslims will now be disallowed to ever stake a claim on such sites. This is in utter violation of Articles 14 and 15 of Constitution.
We stand on a historical juncture to find, if we are a sovereign to make, abridge or amend any law indicating that such and such is not suitable to be followed in the country? Article 368 permits amendment in the Constitution but the fundamental rights, more particularly after Keshavanand Bharti case, cannot be altered, in which SC has confined the limits that Parliament has the power to amend the Constitution, but it cannot alter or destroy its fundamental structure. The judgment was delivered after 68 days of hearing. The Waqf Act, stands in direct conflict with Article 26, which ordains for freedom to manage religious affairs of a citizen of every religious denomination subject to public order, morality and health, shall have the right-to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law.
Waqf is for all purposes a religious issue of Muslims, guaranteed under Article 26 with all its absoluteness, unlike other Articles which provide protection subject to some law. It can rightly be construed that it is beyond the pale of Parliament to amend Article 26, yet the government is hell-bent on doing it. It will now be the new CJI Bhushan Ramkrishna Gavai who will decide it on May 15, as CJI Sanjiv Khanna is set to retire on May 13.
C. Counter Currents
