The Waqf (Amendment) Act, 2025, presently under challenge in the Supreme Court, drastically changes the character and alters the status of Waqf property. Far from resolving the protracted problems, the new law only seeks to exacerbate the problems already faced by the Minorities.

The new Act aims at wrestling complete control over the Waqf property. Inclusion of Two Non-Muslims in all Waqf Boards and Central Waqf Council is mandatory. This militates against Article 26 of the Indian Constitution, guaranteeing Right to Freedom of Religion and to manage its own affairs.

Compare this with the recent order of the Tirumala-Tirupati Devasthanam (TTD) in Andhra Pradesh to terminate services of all non-Hindu employees. Besides, Article 25 of the Constitution defines Hindu as including Sikh, Jain and Buddhist. But, no Sikh, Jain and Buddhist is nominated to any Hindu Religious & Charitable Endowments managed Temples. Is this not a violation of the Constitutional Provisions?

Major issue seems to be to wrest control and eventually appropriate Waqf property, following the Abolition of Waqf by User. It is hard to come across a formal Waqf Deed for any Waqf creation, as there was no concept of registration of Waqf property for 1,000 years.

Mukesh Ambani's residence Antilia in Mumbai stands on the site claimed by Currimbhoy Ebrahim Khoja Yateem-Khana, a charity run by the Waqf Board. It was founded in 1895 by Currimbhoy Ebrahim, a wealthy shipowner. These are instances of Waqf By User.

To illustrate the point further, Babri Masjid in Faizabad in Uttar, was Waqf by User, where for 400 years, the Masjid existed and Namaz was being offered. But there is hardly any formal documentation available. Similarly, Jama Masjid in Delhi has existed for 400 years, but, surely there is no formal document. The Government can easily initiate proceedings to appropriate such land under the new law.

Secondly, Law of Limitation, which was not applicable to Waqf properties, has now been made applicable. By means of Adverse Possession, Waqf properties can be sought to be appropriated.

Red herrings are far too many in the Waqf Act, 2025, arousing apprehensions among people with their faith rooted in the Rule of Law.

One, is divesting Survey Commissioner and the quasi-judicial Waqf Tribunals of any role in disputes resolution. Absolute power vests in District Collector to decide on determination of Waqf property, or otherwise. This is making jurisprudence and principles of natural justice stand on its head. For the simple reason, in most cases of encroachments on Waqf property, the Government is the principal party, in which District Collector will pronounce the judgment?

Two, Waqf-alal-aulad is an endowment where a wealthy Muslim dedicates property for the benefit of their own family and descendants and eventually for charitable purposes. Now, the new Act stipulates that Waqf-alal-aulad must not result in the denial of inheritance rights to the donor's heirs, including women.

This, again, is making jurisprudence stand on its head. Inheritance in Muslim Personal Law kicks in after death. The Act cannot bring in provisions altering the Muslim Personal Law that inheritance is applicable during the lifetime, when waqf is created. This violates the Muslim Personal Law, which, in turn, erodes Article 26 of the Indian Constitution, guaranteeing Right to Freedom of Religion.

Three, The new law goes against the grain of the Indian Constitution. It militates against the Supreme Court pronouncement that once Waqf, always Waqf. The Supreme Court has repeatedly affirmed this principle in various cases, including Sayyed Ali and Others versus Andhra Pradesh Waqf Board. Now, this new Act facilitates the transition from Waqf property to private or Government property.

What is more, the new law is a complete repudiation of Article 26 of the Constitution. This is the Constitutional guarantee to Right to Freedom of Religion, to establish and maintain institutions, manage their affairs, own and acquire property and administer it according to law.

On December 7, 1948, when Article 26 was debated in the Constituent Assembly, Drafting Committee Chairman B R Ambedkar brought in an Amendment to Article 26, subjecting it to "public order, morality and health."

Dr Ambedkar argued in favour of his Amendment that the State must have the ability to regulate religious institutions and their affairs, if necessary. Dr Ambedkar's Amendment was accepted without debate.

Four, the new law stipulates proving to the State the completion of five years as practicing Muslim. For a born Muslim, this is ludicrous. Even if a person converts to Islam, this is outrageous. With conversion, he becomes Muslim instantly and Muslim Personal Law becomes applicable to him. What is the rationale of a cooling off period? And, as far as creating Waqf is concerned, it is the individual's faith and practice and it is his property and his intent to create Waqf. How can an Orwellian State be otherwise?

Five, it defines Waqf property as Waqf by User is registered, is not in dispute and not Government property. This is outright forcing a change of character of Waqf property, whose status cannot be altered.

Six, under the new law, Government property identified as waqf will cease to be waqf. Collector will determine ownership of such properties. Government is often the party in cases of usurpation of Waqf property. Now the Collector, who is the party, cannot sit in judgment over the case. This strikes at the root of jurisprudence and the principles of Natural Justice.

Seven, the Constitution Article 26 is negated by the new Waqf (Amendment) Act, 2025. For instance, two non-Muslims are to be appointed to the Central Waqf Council, to the State Waqf Boards and to Waqf Tribunals. Requirement that Waqf Board Chief Executive Officer must be Muslim has been dispensed with and done away with. Compare this with the Tirumala-Tirupati Devasthanam (TTD) Trust Board Resolution passed recently to terminate the services of all non-Hindu employees in the TTD. Although Article 25 of the Constitution defines Hindu as including Sikh, Jain and Buddhist, they are not appointed to Temple Trusts.

Eight, any property identified or declared as Government property, ceases to be Waqf property. This is throwing the entire judicial process out of the window, lock, stock and barrel. In case of inquiry and submission of report to Government by Designated Authority, during such period, it ceases to be Waqf property. This is unthinkable in a legal system. Even Babri Masjid, during pendency of the case, was referred to as a disputed structure and not deemed Temple, like in the present instance. One wonders whether this is an Act of Parliament, or Decree of Divine Law.

Nine, Waqf property ceases to be Waqf, if declared a Protected Monument under ASI Act. What will be the status of Jama Masjid in Delhi?

Ten, any Waqf property in Scheduled Tribes areas in Schedule V and Schedule VI of the Constitution, ceases to be Waqf property.

In fact, Waqf is the most legally regulated body in the entire country. The Hindu Religious & Charitable Endowments Act is not a Central law. Only in a few States, this law has been enacted, making it so glaring between the Minority and Majoritarian communities.

The first regulation was attempted in 1906. The Waqf Validating Act, 1913, aimed to validate and clarify the rights of Muslims to create waqfs (religious endowments) for the benefit of their families and descendants, eventually leading to charitable purposes. The Waqf Act, 1923, introduced rules for proper accounting and transparency in Waqf management. The Waqf Validating Act, 1930, strengthened legal validity of family Waqfs, giving legal backing to the 1913 Act.

In Independent India, the first Central Waqf Act was passed by the Nehru Government in 1954. P V Narasimha Rao brought forward the more comprehensive Central Waqf Act, 1995, which was amended comprehensively in the light of the K Rahman Khan-headed Parliament Select Committee Report in 2013.

No other Personal Law has seen so many Government and statutory interventions, as much as the Muslim Personal Law. What is more, imparting transparency, Digitization of the Waqf Records started in 2010 and about 42 per cent of the records are digitized.

While Wahabis and Deobandis, the Sunnis, are clubbed together, the Bohra, Agha Khani, Ahmediya, who are largely Shias, are clubbed together. But, here, the Modi Government seeks to split up all of them. As part of its political agenda, the Modi Dispensation splits up Muslims into Sunni, Shia, Bohra, Agha Khani, Ahmediya, et al.

Waqf is continuing charity, with land permanently dedicated to God for charitable purposes, Sadqa-e-Jaria. Sadqa is Charity and Jaaria is continuing.

Waqf is truly representative of the Secular Ethos. Simply put, under the Indian Constitution, the Government cannot defray expenses for religious purposes, like running Masjid and Madrasa and upkeep of graveyards. It is here that the Waqf property assumes significance, where the community steps in by contributing through the Waqf for religious and charitable purposes.

Once land is made out for charitable purposes, and that, too, in the name of Allah, most Beneficent and Merciful, it can neither be alienated, nor its status altered by way of sale, gift or transfer. But the new Waqf Act facilitates conversion of Waqf land into private or Government property.

Conceptually, Waqf is a great arrangement to give philanthropy in the society, by encouraging the community to step in and create Waqf for the purpose. While Zakat is ordained on an individual to do charity, Waqf is the arrangement at the societal level to carry on philanthropy.

Under the Secular Ethos of the Indian Constitution, the Government cannot defray expenses for religious purposes, like running Masjid and Madrasa and for the upkeep of graveyards. It is here that the Waqf property assumes significance, where the community steps in by contributing through the Waqf for religious and charitable purposes.

Far from the Waqf property being dubbed the third largest land bank, after Railways and Defence, such a distinction probably goes only to Hindu Religious & Charitable Endowments, which controls around 10 lakh acres just in Telangana, Andhra Pradesh and Tamil Nadu, while lakhs of more land is there, from Vaishno Devi Shrine Board in Jammu & Kashmir in the North, to Sree Ananta Padmanabha Swamy Temple in Thiruvananthapuram in Kerala in the South.

In comparison, the total Waqf property all over the country may be around seven lakh acres.

Waqf property issue was flagged for the first time by Prime Minister Indira Gandhi in her famous 15-Point Programme for Minorities, which was in the form of an open letter to State Chief Ministers on May 11, 1983. She said: "Apart from the general issues to which I have referred, there are various local problems, which develop into needless irritants to Minorities. For instance, encroachments of Waqf properties and graveyards has led to protests and grievances in some places. Suitable steps should be taken to deal with such problems on an expeditious and satisfactory basis."

The Waqf phenomenon is not peculiar only to Islam. Hinduism, too, has the Hindu Religious & Charitable Endowments Department. Far from the Waqf property being the third largest, after Railways and Defence, such a distinction probably goes only to Hindu Religious & Charitable Endowments, which controls around 10 lakh acres just in Tamil Nadu, Telangana and Andhra Pradesh, while lakhs of more land is there, from Vaishno Devi in Jammu & Kashmir in the North. to Sree Ananta Padmanabha Swamy Temple in Thiruvananthapuram in Kerala in the South. In comparison, the total Waqf property all over the country may be around six lakh acres.

Such deliberate misinformation, far removed from facts, is spread on purpose to promote polarization. Another misconception, again deliberately promoted, is that Waqf Board arbitrarily determines and appropriates any property by declaring it as Waqf property. Union Minority Affairs Minister Kiren Rijiju came up with a cheap jibe that but for Prime Minister Narendra Modi coming to power, Waqf Board would have claimed Parliament as Waqf property.

This notion is wantonly promoted by the ruling Dispensation at the Centre that the Waqf Boards arbitrarily declare properties as Waqf. In fact, the Waqf Board can, at best, only flag an issue for determining Waqf property. But, it neither has the mechanism, nor is it empowered, to determine Waqf property.

There is a well laid out judicial procedure for the determination of Waqf property. The Survey Commissioner surveys the disputed land, examines revenue records and other related and relevant documents and conveys his findings to the Government. Only after such a decision is approved by the Government and it is duly notified in the Gazette, that the land is returned to Waqf. There is no scope for arbitrariness in the entire issue.

What is more, the Waqf Board is packed with Government nominees; Waqf Tribunals are packed with Government law officials; Survey Commissioners are Government officials. Where on earth is the scope for arbitrary actions by Muslims, as it is sought to be made out?

Waqf properties have been in existence for 1,000 years. Waqf in India is traced up to the Delhi Sultanate in 1206. It continued through other dynasties till 1526, when Mughals, too, continued it till 1857. Following the takeover by the British Crown, the British Government tried to regulate it, for the first time, in 1906.

Soon after the Indian Independence, the Central Waqf Act was passed by the Nehru Government in 1954. In 1995, Central Waqf Act was passed by P V Narasimha Rao Government, which is considered more comprehensive. In 2013, the Congress-led UPA Government brought Amendments based on the K Rahman Khan-headed Parliament Select Committee Report.

There are categories of Waqf, like religious, pious and charitable. Over a prolonged period of neglect, with tardy work by Waqf Boards, several nagging issues have cropped up, including land grabbing by unauthorised occupants; disputes with Government over ownership; lack of proper follow up action by the Waqf Boards; and absence of mechanisms to remove encroachers, have all resulted in losing control over huge tracts of Waqf property.

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VENKAT PARSA