The newest apple of discord between the federal government of the day and the Muslim group of India are the 2 Waqf (Modification) Payments launched in Parliament in August this yr. The veracity of their goals and objects, professed and alleged, is to be assessed protecting in thoughts the historical past of wakf administration within the nation.
Wakf, an Arabic expression, signifies the disposition of property by its proprietor for non secular and charitable functions, both by means of a present to grow to be efficient immediately or beneath a will in order to take impact after his demise. Mosques, dargahs, and graveyards are all wakfs on this sense.
Authorized regulation of shrine administration in India started throughout British rule with the enactment of the Charitable and Spiritual Trusts Act 1920 equally relevant to all communities. Three years later got here the primary community-specific regulation on this space — the Mussalman Wakf Act 1923. The Authorities of India Act 1935 positioned non secular and charitable endowments within the concurrent jurisdiction of the central and provincial legislatures. Thereafter, native wakf Acts had been enacted in Bengal, Bihar, Uttar Pradesh and Delhi.
After Independence, the Structure of India positioned non secular and charitable endowments concurrently within the fingers of the central and state legislatures. Nevertheless, Parliament by no means enacted any central regulation to manage the administration of Hindu shrines and left it fully to the states. Enactment of native legal guidelines on the topic started with the Bihar Hindu Spiritual Trusts Act and the Madras Hindu Spiritual and Charitable Endowments Act, enforced throughout 1950-51, and by now, there are comparable legal guidelines in most states. There are additionally particular legal guidelines in pressure in sure states to manage the administration of main temples. There are additionally particular legal guidelines in pressure in sure states to manage administration of main temples just like the Jagannath temple in Odisha, Kashi Vishwanath in Varanasi, Sri Venkateswara temple in Tirupati and Mata Vaishno Devi in Jammu and Kashmir.
For the Muslim group, Parliament enacted a normal wakf Act in 1954, and a particular regulation in 1955, for the largest Muslim shrine within the nation — the Dargah of Sheikh Moinuddin Chishti in Ajmer. The previous Act laid down that it will steadily change all of the native legal guidelines on administration of wakfs. This didn’t occur until the enactment of an enormous Wakf (Modification) Act in 1984. It was, nonetheless, not put into pressure until 1995 when Parliament enacted a brand new complete wakf Act. After its enforcement, all of the native wakf Acts had been steadily repealed, besides these of Jammu and Kashmir because of the particular standing of the previous state beneath the Structure.
In 2013, the Wakf Act of 1995 was subjected to huge amendments. Aside from introducing drastic adjustments within the Act, it modified the spelling of the phrase wakf to waqf and changed its plural wakfs with the Arabic expression auqaf. This pedantic train was completely pointless and led to horrible confusion. The phrases wakf and wakfs have been utilized in lots of of different Acts and hundreds of judicial choices. Even within the legal guidelines of the Arabic-speaking nations, the phrase is spelt as wakf.
Recognized since then because the Waqf Act, the 1995 regulation was additional amended in 2014 by the Waqf Properties (Eviction of Unauthorised Occupants) Act. 5 years later, the Jammu and Kashmir (Reorganisation) Act 2019 prolonged this Act as amended updated in each the newly created Union Territories, repealing all of the native legal guidelines on the topic.
On the entire, the regulation of India referring to wakf administration is in a pitiable mess. It has generated an enormous physique of case regulation consisting of lots of of Supreme Courtroom and excessive courtroom choices. To say that there isn’t any corruption within the administration of non secular locations belonging to any group quantities to shutting one’s eyes to the obtrusive floor actuality. In lots of circumstances, the trustees and caretakers of non secular locations have misused their authority and misappropriated the sources for illegal or unauthorised functions. The State can’t perpetually stay a silent spectator to this situation.
The presumption of any group that its non secular locations take pleasure in safety beneath the non secular freedom clauses of the Structure of India is fully baseless. Article 26 does entitle each non secular denomination to handle its personal affairs in issues of faith and to accumulate, personal and administer property. This freedom is, nonetheless, not absolute or unconditional and isn’t excluded from the purview of the clarification supplied within the previous article that the residents’ proper to freedom of faith doesn’t “forestall the State from making any regulation for regulating or proscribing any financial, monetary, political or different secular exercise which can be related to non secular follow”.
Throughout the previous few years, there have been strikes to amend and even repeal the Wakf Act of 1995 and Payments aiming at this had been moved in Parliament. Now the federal government has come out with two new Payments. Considered one of these is to repeal the outdated Mussalman Wakf Act of 1923. This outdated Act ought to the truth is have been repealed by the Wakf Act 1995. The delayed motion by the current authorities on this path is welcome.
The opposite Invoice is to make drastic adjustments within the 2014 model of the Wakf Act of 1995. It has led to an important controversy and Muslim leaders are opposing lots of the adjustments it proposes. In view of the current ambiance prevailing within the nation, their views and suspicions can’t be known as imaginary and brushed apart of their entirety. Because the administration of the bulk group’s non secular locations throughout India remains to be being regulated by state legal guidelines solely, it will likely be most equitable to observe the identical sample for the wakfs as effectively. This will likely be in accord with the equality provisions of the Structure and its scheme of division of powers between the Centre and states. As soon as the states enact their very own wakf Acts, the central Wakf Act of 1995 with all of its later amendments could definitely be repealed.
Tahir Mahmood is former chairman, Nationwide Minorities Fee, and former member, Legislation Fee of India. The views are private
