Unconstitutional and Unfair: How Proposed Waqf Bill Endangers India’s Religious Endowments

Kolkata: Park Court is a prime property located in the heart of Kolkata. The four-storey building, located at the Park Circus seven point crossing houses the office of Kolkata’s Deputy Commissioner of Police, South East Division. The way Kolkata Police functions from here, it seems to be a government property, but in reality, Park Court is a Waqf property under Waqf-Al-Aulad. Seven percent of its earnings goes to the Waqf Board.

“Twelve flats of Park Court (almost half part of the building) were taken on rent by Britishers in 1942. When we got independence, the police occupied the palace and started giving us Rs 65 as rent. They never increased the rent and we went to Calcutta High Court, seeking its intervention to vacate the property. In 2001, we won the case. The court of Justice Amitava Lala in its order said, ‘to immediately vacate the building comprising 12000 square feet area,’ informed Abrarul Haque, a Mutawalli, whose forefathers had waqf properties through their children.

More than half of the building is occupied by the police, while tenants reside in the remaining part. The property is worth several crores according to market value, and the nature of the occupants clearly shows that government officials are misusing it.

“But instead of vacating the building, the police have fully occupied them. And now, not only do they not pay us any rent, but any maintenance too. There is an attitude of officials and politicians too, to take undue advantage of the waqf properties. And they give us step-motherly treatment,” the Mutawalli mentioned.

Haque’s case is still fighting a case for the eviction of his Waqf-Al-Aulad property at Calcutta High Court. This is just one example of thousands such cases across India related to waqf properties.

However, the proposed Waqf (Amendment) Bill 2024, which should help the likes of Haque, who are long time sufferers, has not brought any hope for them, instead, most are fearing that if it gets implemented in its current form, then the District Magistrates (DM) will have more power to further use the properties for their work, instead of these properties being used for the betterment of the Muslim community.

The Waqf (Amendment) Bill 2024 was tabled during the Monsoon session of the parliament. Soon it was opposed by opposition members of parliaments in both houses- Rajya Sabha and Lok Sabha. The bill was then sent to the Joint Parliamentary Committee (JPC). The Government of India had made two teams of 10 members from Upper House and 21 from Lower in the committee.

Though the nationwide survey of waqf property has not been fully done, it is believed that after Indian Railway and Defense, the third largest property belongs to Waqf in India. There was churning within the Muslim community in India as to how to better use the waqf properties and help the community grow, the main purpose of the waqf, ironically, the proposed amendments in the 1995 Waqf Act are further weakening the community’s hold on it.     

How is the bill unconstitutional in many ways?

The Waqf (Amendment) Bill 2024 violates not only one but several Articles of the Indian Constitution including Article 14 (Equality Before the Law), Article 25 (Freedom of Religion), Article 26 (Freedom to Manage Religious Affairs) and Article 300A (Right to Property).

Violations of Article 14: The creation of separate Waqf Boards for different sects, the inclusion of non-Muslims in the Waqf Boards, and the requirement that only practising Muslims for at least five years can create a waqf, impose discriminatory requirements on the Muslim community, creating unequal standards that other religion communities in India do not face.

Violations of Article 25: The bill proposes arbitrary restrictions on who can create a waqf, mandates that all waqf must be created through written deeds and limits the ability of new converts to establish waqf, infringing on the religious freedom to practice and propagate Islam as guaranteed by the Article 25.

Violations of Article 26: The bill’s provisions allowing the government to change the purpose of a waqf, eliminating the ‘waqf by user’ clause and weakening the Waqf Tribunal directly interfere with the community’s constitutional right to manage its own religious institutions.

Violations of Article 300A: The amendments, particularly those that permit the government to seize waqf properties, threaten the constitutional protection of property rights, undermining the ownership and management of religious endowments.   

Just like that, it violates the Legal Framework including Supreme Court Rulings such as Shirur Mutt Case (1954), Union of India versus R Gandhi (2010) and L Chandra Kumar versus Union of India (1997).

And Legal Principles and Customs. The proposed bill disregards long-established legal principles and customs like Article 13(3)(a) of the Indian Constitution. And Principle of Non-Discrimination.

It also violates Islamic Law and Muslim Customs. The bill proposes several restrictions that conflict with Islamic law and established customs within the Muslim community, such as Oral Waqf and Mutawalliship, Masha of Waqif, Sectarian Divisions and Discrimination against new converts.

The bill will also impact on the non-Muslim religious communities. While the amendments primarily target Muslim Waqf properties, they set a dangerous precedent that could impact all religious communities in India.

Outrage in community over proposed bill

Recently, the CEO of Rahmani 30, Wali Fahad Rahmani, who is reaching out to stakeholders and making them aware community people of the unconstitutionality of the bill held a Round Table meeting in Kolkata. “We have met Joint Parliamentary Committee members, opposition leaders as well as the allies of the ruling National Democratic Alliance and informed them about the evil intent in the bill. We have even met Lallan Singh (JDU), who was in favour of the bill in the parliament. And also Chirag Paswen of LJP promised to oppose the bill. One major visible problem is the proposed new board members, out of eleven members, 7 can be from government and non-Muslims too. So how will it remain a religious community affair?” mentioned Fahad Rahmani to the gathered community people.   

A memorandum in this regard, in the name of Ahmad Wali Faisal Rahmani, Ameer Shariat (Head) of Bihar, Odisha and Jharkhand has been given to Bengal’s Urban Development Minister Firhad Hakim on the occasion.

“In Bengal, we are making a core committee to reject the bill and highlight this issue before concerning authorities in the state,” Rafay Siddique, who organized the Round Table meeting informed eNewsroom.

Meanwhile, senior advocate Mahmood Pracha also held a press conference in Delhi and asked people to outright reject the bill.

Concerned citizens have also started a campaign to email their objections to the bill. Recently the JPC has also sought public suggestions. 

“Misinformation has been propagated against waqf properties like any government property declared waqf. While the case is reversed. It is the waqf property which has been acquired by the governments and administrations. The bill should give special executive power to boards so that they can evict buildings like Park Court, where the court gave its verdict,” Asif Ali, a chartered accountant and concerned citizen, who has written to many higher authorities rejecting the bill told eNewsroom.