The Waqf (Amendment) Bill, 2024, introduced in the Lok Sabha, has sparked intense legal and political debates over its constitutional validity and broader implications.
NEW DELHI: The introduction of the Waqf (Amendment) Bill, 2024 in the Lok Sabha has triggered significant political and legal debates, with experts raising concerns over its constitutional validity and broader implications. The bill, tabled by Minority Affairs Minister Kiren Rijiju, has been met with sharp criticism, particularly from legal scholars and senior advocates who foresee potential legal challenges.
Constitutional Concerns and Article 26 Violations
Senior advocate Rauf Rahim has been vocal in highlighting
“the bill’s potential violation of Article 26 of the Indian Constitution, which guarantees religious denominations the right to manage their own affairs in matters of religion“
He asserts that multiple provisions in the bill infringe upon this right, making it vulnerable to judicial scrutiny. Rahim has stated,
“A challenge to the bill before the court will definitely be there,”
signaling an impending legal battle.
Criticism of Government’s Justifications
Advocate-on-Record Fuzail Ahmad Ayyubi, who had participated in deliberations before the Joint Parliamentary Committee (JPC), questioned the rationale behind introducing the bill. He criticized the government’s justification that the amendments aim to enhance governance and transparency, arguing that the proposed changes do not align with these stated objectives.
According to Ayyubi,
“The government’s stand is totally misplaced,”
as there is a significant disparity between the provisions in the bill and the official explanations given by the ruling administration.
The Reintroduction of the Limitation Act and Its Implications
One of the primary concerns raised by Rahim is the reintroduction of the Limitation Act in matters related to Waqf properties. He contends that this move could have serious ramifications, particularly given the perpetual nature of Waqf.
“What is the purpose of bringing in the Limitation Act when these properties cannot be alienated?”
he asked, further arguing that since Waqf property is dedicated permanently and is considered vested in the Almighty, imposing a time limitation contradicts its fundamental nature.
Redefining Waqf: A Problematic Clause
Ayyubi also raised concerns over a controversial amendment in the definition of Waqf. The bill stipulates that
an individual must have been a Muslim for at least five years and must prove that they are a practicing Muslim to create a Waqf.
He described this requirement as
“strange,”
questioning the practicality of demonstrating religious practice:
“How can one showcase that they are a practicing Muslim?”
This provision has sparked concerns about religious discrimination and arbitrary barriers to Waqf creation, potentially leading to legal disputes over its enforceability.
The Removal of the Doctrine of ‘Waqf by User’
Another contentious provision in the bill is the removal of the doctrine of ‘Waqf by user’, which traditionally recognized long-standing religious usage as a valid basis for establishing Waqf status. While the bill omits this doctrine, it introduces a new clause stipulating that
‘Waqf by user’ shall now only apply prospectively, except in cases involving disputed land or government property.
Ayyubi criticized this partial retrospective application, stating,
“By adding this provision, the government has made it ‘partially retrospective’,”
which could create legal uncertainty and complicate existing Waqf claims.
Rahim, however, countered that dismissing the principle of ‘Waqf by user’ outright is problematic. He emphasized that the concept has existed since the time of the Holy Prophet and does not necessarily require formal documentation.
“One cannot and should not say that ‘Waqf by user’ is not there. It is a principle deeply embedded in Islamic law and tradition,”
he stated.
Concerns Over Administrative Changes in Waqf Boards
Ayyubi further criticized the bill’s restructuring of Waqf boards, pointing out that while these boards were previously constituted through an electoral process, the new amendments propose a nomination-based system. He argued that this change undermines the representative nature of the boards and centralizes authority, potentially reducing community participation in Waqf management.
Flawed Deliberation Process in the JPC
Both Rahim and Ayyubi expressed dissatisfaction with the Joint Parliamentary Committee’s approach to addressing stakeholders’ concerns. Rahim described the discussions as
“cursory,”
alleging that substantive issues were not given adequate consideration. Ayyubi echoed this view, stating that while stakeholders were allowed to present their concerns,
“the reflection that should have come considering the points raised is missing.”
ALSO READ: LEGAL EXPLAINER| Waqf & The Waqf Amendment Bill 2024: Key Legal Changes & Impact
Potential Legal and Political Fallout
Given the widespread objections from legal experts and religious groups, the Waqf (Amendment) Bill, 2024 is expected to face legal scrutiny and potential constitutional challenges. The bill’s provisions, particularly concerning Article 26 rights, the Limitation Act’s applicability, Waqf board restructuring, and doctrinal changes, are likely to be debated extensively both inside and outside the courtroom.
With increasing opposition from legal scholars, religious organizations, and political entities, the bill’s future remains uncertain. Whether the government will amend controversial provisions or defend them in court will determine the next phase of this contentious legislative proposal.
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