Syllabus: GS2/Polity and Governance
Context
- The Supreme Court has upheld the Waqf (Amendment) Act, 2025 while striking down few provisions and balancing state regulation with minority rights.
| Meaning of ‘Waqf’: – Refers to properties dedicated solely for religious or charitable purposes under Islamic law. – Sale or other use of the property is prohibited. – The ownership of the property is transferred from the person making the Waqf (called waqif) to Allah, making it irrevocable. – The creator is a wakif, and the property is managed by a mutawalli. Origin of the Concept of ‘Waqf’: – Traces back to the Delhi Sultanate when Sultan Muizuddin Sam Ghaor dedicated villages to the Jama Masjid of Multan. – Waqf properties grew with the rise of Islamic dynasties in India. – The Mussalman Waqf Validating Act of 1913 protected the institution of Waqf in India. Constitutional Framework and Governance: – Charitable and religious institutions are under the Concurrent List of the Constitution, allowing both Parliament and State Legislatures to frame laws on it. – Creation of Waqf: Can be created via: 1. Declaration (oral or written deed). 2. Long-term use of land for religious or charitable purposes. 3. Endowment upon the end of a line of succession. – States with the highest share of Waqf properties: Uttar Pradesh (27%), West Bengal (9%), Punjab (9%). – Evolution of Waqf Laws: 1. 1913 Act: Validated Waqf deeds. 2. 1923 Act: Made registration of Waqf properties mandatory. 3. 1954: Established Central Waqf Council and State Waqf Boards for better management. 4. 1995 Act: Introduced Tribunals for dispute resolution and added elected members and Islamic scholars to Waqf Boards. |
Key Amendments of the Waqf (Amendment) Act, 2025
- Composition of the Central Waqf Council: The Union Minister in-charge of waqf is the ex-officio chairperson.
- Council members include:
- Members of Parliament (MPs).
- Persons of national eminence.
- Retired Supreme Court/High Court judges.
- Eminent scholars in Muslim law.
- Removes the Muslim requirement for MPs, former judges, and eminent persons.
- It mandates two non-Muslim members in the Council.
- Composition of Waqf Boards:
- Empowers state governments to nominate one person from each group.
- Non-Muslim members required: two.
- Must include at least one member each from Shias, Sunnis, and Backward Muslim classes.
- Requires two Muslim women members.
- Composition of Tribunals:
- Removes the expert in Muslim law.
- District Court judge (Chairman).
- Joint Secretary rank officer.
- Appeals Against Tribunal Orders:
- Act: Decisions of Tribunals are final, with no appeals allowed in courts.
- Amendment: Allows appeals against Tribunal decisions to the High Court within 90 days.
- Survey of Properties: The Act replaces the Survey Commissioner with the District Collector or other senior officers to oversee the survey of Waqf properties.
- Government property as waqf: It states that any government property identified as waqf will cease to be so.
- The Collector of the area will determine ownership in case of uncertainty, if deemed a government property, he will update the revenue records.
- Audits: Waqf institutions earning over ₹1 lakh will undergo audits by state-sponsored auditors.
- Centralized Portal: A centralized portal will be created for automating Waqf property management, enhancing efficiency and transparency.
- Property Dedication: Practicing Muslims (for at least five years) can dedicate property to the Waqf, restoring pre-2013 rules.
- Women’s Inheritance: Women must receive inheritance before the Waqf declaration, with special provisions for widows, divorced women, and orphans.
Key changes SC has incorporated into the Act
- Practicing Islam: The Court’s most significant intervention concerns Section 3(r), which requires anyone creating a waqf to demonstrate they have been practising Islam for at least five years.
- The court stayed the provision until the government frames rules for determining religious practice.
- Collector’s Power Over Waqf Properties: Section 3C empowers the district collectors to determine whether properties claimed as waqf actually belong to the government.
- Court’s ruling: Stayed provision that allowed stripping waqf status before inquiry is complete, calling it “prima facie arbitrary”.
- Directed that waqf properties cannot be dispossessed or altered until final decision by Waqf Tribunal and any subsequent appeals.
- Representation in Waqf Administration: Its amended Act allowed up to 12 non-Muslims on the Central Waqf Council (22 members) and 7 non-Muslims on state boards (11 members).
- The Court’s ruling has capped this at 4 (Central) and 3 (State).
- CEOs of Waqf Boards should, “as far as possible”, be Muslims (not mandatory).
- This balance sought transparency & inclusivity vs. minority autonomy in religious affairs.
- “Waqf by User” Deletion: Earlier law allowed declaring property as waqf based on longstanding religious use without formal documents.
- Court’s ruling: It upheld deletion, clarified that this change applies only prospectively—existing waqf-by-user properties registered before April 8, 2025, remain protected.
- Protected Monuments: The court declined to interfere with provisions declaring waqf status void for properties that are protected monuments or belong to Scheduled Tribes.
Conclusion
- A law made by Parliament carries a presumption of constitutionality unless a court strikes it down.
- While SC refused to stay the Waqf Act, it stayed certain provisions “to protect interest of all parties and balance equities during pendency”.
Source: TH
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