 |
|
The Association for the Protection of Civil Rights (APCR), an NGO, has filed a writ petition in the Supreme Court challenging the Waqf (Amendment) Act, 2025. This legal challenge joins several other petitions already questioning the validity of the Act. APCR argues that the amendment violates Articles 14, 25, 26, and 300A of the Indian Constitution, claiming it represents an alarming intrusion into the religious affairs of the Muslim community and undermines the fundamental purpose of waqf, a deeply ingrained practice rooted in Quranic references and the Hadith since the time of Prophet Mohammad. The petition specifically targets the insertion of Section 40, asserting that it severely undermines the principles of natural justice enshrined in the Waqf Act of 1995 and threatens the autonomy and effectiveness of the Waqf Board. The NGO's legal challenge is based on several grounds. Firstly, they argue that the substitution of the title to 'Unified Waqf Management, Empowerment, Efficiency, and Development' is misleading and contrary to the fundamental purpose of the Act. APCR contends that the change is not a neutral one but a deliberate attempt to rewrite history and dismantle the cultural legacy of colonized communities. They emphasize the deep-rooted religious, historical, and cultural significance of the term 'Waqf,' arguing that its erasure reflects a colonial mindset aimed at diluting indigenous legal traditions under the guise of modernization. The petition draws a parallel with the decolonization efforts in the Global South, criticizing the legislative change as a redundant and regressive colonial sentiment to erase historical legacies and religious symbols under the garb of 'modernization.' It questions the legislature's rationale for restoring 'indigenous institutions' in other spheres while simultaneously reinforcing colonial language and frameworks in this particular instance. Furthermore, the petition asserts that the original title of the principle Act does not create any burden on beneficiaries or the legal community and that there is no compelling legal, administrative, or social necessity to replace the term 'Waqf,' a universally recognized concept in both Islamic law and Indian jurisprudence. The implications of this title change, according to APCR, extend beyond mere semantics, representing a symbolic attack on the identity and heritage of the Muslim community.
Secondly, the petition argues that the amendment arbitrarily interferes with the religious affairs of the Muslim community, asserting that similar restrictions do not apply to non-Muslim religious institutions, thereby failing the test of fairness, reasonableness, and non-discrimination. APCR criticizes the inclusion of Non-Muslims in the religious affairs of the Muslim minority, arguing that it is not a step toward 'inclusivity' but rather dilutes the autonomy of an already underrepresented community in India's institutional framework. The petition cites the Sachar Committee Report (2006), which presents compelling evidence of the abysmal socio-economic status and severe underrepresentation of Muslims in public institutions, as further justification for their argument. In contrast, the petition points out that non-Muslim charitable institutions actively prohibit Muslim participation in their religious affairs, highlighting the discriminatory impact of the amendment. The petition cites examples of states like Uttar Pradesh, Kerala, Karnataka, and Tamil Nadu, where only Hindus are permitted to be members of the Hindu endowment institutions. The petition contrasts this with the targeting of waqf institutions, which it argues violates principles of neutrality and secular governance. Furthermore, the petition warns that any forced interference in religious administration risks igniting communal and social unrest, thereby threatening the secular fabric of the Constitution. It argues that it is neither justified nor necessary to impose such provisions when no similar demands are being placed on non-Muslim religious institutions and that this selective encroachment on minority rights must therefore be struck down in the interest of justice, fairness, and constitutional integrity. The argument here centers on the principle of equality before the law and the protection of minority rights as enshrined in the Indian Constitution. The NGO emphasizes that the amendment creates an uneven playing field, subjecting Muslim religious institutions to regulations and oversight that are not applied to similar institutions of other faiths.
Thirdly, the petition challenges the omission of Section 3(r), which had a provision on waqf by user doctrine. APCR argues that this constitutes a deliberate weakening of the legal recognition granted to waqf properties. Furthermore, the petition states that the omission would result in jeopardizing the vast tracts of waqf property that have historically served religious and charitable purposes for the Muslim community and other non-Muslim communities as well. The petition highlights that the Supreme Court has previously acknowledged and validated this doctrine in M. Siddiq v. Mahant Suresh Das (The Ayodhya Verdict). The removal of this provision, therefore, represents an attempt to erode the foundational principles protecting Waqf properties and disrupts the delicate balance between religious autonomy and state oversight. APCR contends that the omission of Section 3(r) from the principal Act is not only contrary to established judicial precedents but also sets a dangerous precedent for the arbitrary exclusion of long-recognized religious rights. Moreover, the petition highlights that the Joint Parliamentary Committee (JPC) has acknowledged that the effect of the deleted provision will apply prospectively, except in cases where disputes already exist. However, this additional proviso, according to the petition, opens the floodgates to frivolous litigation, placing an unjust burden on individuals seeking to protect their legitimate rights over Waqf properties. Such an unnecessary amendment encroaches upon rights guaranteed under Article 300A of the Constitution, which ensures the protection of property rights. The 'waqf by user' doctrine essentially allowed for the recognition of properties as waqf based on their long-standing use for religious or charitable purposes, even without formal documentation. The removal of this provision introduces uncertainty and could lead to the dispossession of waqf properties, especially those lacking formal deeds or ownership records.
Finally, the petition argues that the exclusion of disputed properties from recognition as waqf will escalate frivolous litigation by individuals or entities seeking to challenge existing waqf claims. APCR predicts that disputes over waqf properties will arise drastically, leading to prolonged legal battles and uncertainty over religious properties. By excluding government properties, the amendment allows the state to take over lands previously recognized as waqf by user. This could affect mosques, dargahs, graveyards, and religious institutions built on lands now considered “government property.” The petition also raises concerns about the risk of arbitrary classification of waqf lands as government property to facilitate acquisition. It further states that the amendment undermines the long-standing doctrine by placing additional conditions on recognition. Historically, waqf properties were determined by continuous religious use, not by formal deeds or ownership records. This sudden shift in legal interpretation, according to the petition, will weaken the waqf system. The petition refers to the Sachar Committee Report (2006), which already highlighted the socio-economic disadvantages faced by Muslims, and argues that if waqf properties are excluded based on government claims or disputes, it will lead to a systematic decrease in religious and community assets available for the Muslim community. The petition adds that the waqf board will face operational difficulties in protecting or managing waqf properties that were once waqf by user. Overall, the petition claims that the amendment violates Articles 25 and 26 as it constitutes an unconstitutional encroachment upon the religious autonomy of the Muslim community. The challenge to the Waqf Amendment Act by the APCR raises fundamental questions about the balance between state power and religious freedom, the protection of minority rights, and the interpretation of constitutional principles in the context of religious practices and institutions. The Supreme Court's decision on this matter will have significant implications for the Muslim community in India and the broader legal framework governing religious institutions and property rights.