A Secular Act

THE CENTRAL challenge to the Waqf (Amend­ment) Act, 2025 before the Supreme Court was that the legislation is a direct attack on the secular character of the Constitution and violates the fundamental right to profess and practice religion set out in Article 25. The Act, according to its opponents, was a deliberate assault on the religious rights of Muslims intended to usurp land and properties designat­ed as Waqf as per provisions of Islamic law and theology.

The Supreme Court exam­ined the charge in detail and put the Act to test on two ad­ditional counts—was it a case of legislative incompetence and is the law manifestly arbitrary? After examining the arguments, the court concluded that registration of Waqf properties, excluding tribals from the Act’s ambit, aligning it with the law for protected monuments, ap­plication of the law of limita­tions and, above all, junking the “Wakf by user” provision is not only not discriminatory but a long overdue antidote to political manipulation and legal excesses over the past 100 years.

The political debate over the Act played out on familiar lines. The ‘secular’ opposition to the Act led by the I.N.D.I.A. bloc dubbed the law as the Bharatiya Janata Party’s (BJP) agenda to undermine the rights of Muslims. BJP argued the Act is a reform of Waqf and protects private and govern­ment properties. The argu­ments before the Supreme Court mirrored the political opposition in legal terms, chal­lenging almost every section of the law passed by Parlia­ment on April 4. The objective was evident—a ruling staying the Act would be hailed a vic­tory for ‘secular’ values.

The court examined the charge that the Act is an infringement of the rights of Muslims. It found that not only was registration of Waqf properties mandated way back by the 1923 law, there was a consistent thread of concern over the misuse of Waqf to thwart creditors, create disputes, encroach on government land, allow biga­mous men to beat the law by conversion and deny widows their rights. A Waqf Enquiry Committee set up by the Centre in 1969-70 comprising eminent Muslims strongly recommended that Mutawal­lis (administrators) of Waqf properties be debarred from filing suits if the properties under their supervision were not registered.

Accordingly, Section 55(E) was added to the 1954 Act by way of the Waqf (Amend­ment) Act, 1984. Yet, as the Supreme Court ruling notes, it was never given effect to. The Parliament further passed the Wakf Act, 1995, considered by the Supreme Court as the “Original Waqf Act”. Without elaborating, the court notes “a large number of persons from the Muslim community” objected to the 1984 amend­ments. It can be guessed who the objectors were given the relentless opposition of religious conservatives and certain political parties to similar provisions in the 2025 Act. The pernicious “Wakf by user” that relied on an ill-defined concept of “use” rather than registration to declare a property or land as Waqf, a part of the 1954 law, was reiterated in the 1995 Act.

The resistance to registra­tion is particularly puzzling as the court points out that even in case of a “Wakf by User”, an application could be made for registration “even if no Waqf deed was executed by giving the details, which were known to the applicant, about the origin, nature and objects of the Waqf.” The only plausible reason might be a concerted bid to facilitate and protect opaque and illegal land transfers.

Interestingly, the 1995 Wakf Act had a provision by virtue of Section 87 that barred institution of any suit, appeal or other legal proceedings on behalf of any unregistered Waqf. This was in line with the recommenda­tions of the 1969-70 enquiry committee and Section 55E that was unsuccessfully sought to be made part of the statute in 1984. “However, it is to be noted that by way of Waqf (Amendment) Act, 2013, Section 87 of the Original Waqf Act [of 1995] came to be deleted,” the Supreme Court states. So, the Congress-led United Progressive Alliance (UPA) government in effect increased the immunity of un­scrupulous Mutawallis.

Senior Congress leader Salman Khurshid, who was minister for minority affairs in the UPA government when changes of the Wakf Act were made in 2013, has lamented refusal to consider tougher provisions which he felt laid the ground for the 2025 Act. Law Minister Kiren Rijiju alleged lax provisions in the Waqf law facilitated denoti­fication of 123 properties in Delhi on the eve of the 2014 Lok Sabha elections. They were designated as Waqf property. After the Supreme Court verdict, Khurshid said the court has delivered a win-win ruling. The fact remains Congress oversaw a dilution of the Waqf law intended essentially to cater to its vote-bank interests.

The court examined Sec­tion 108(A) of the previous Act that was deleted by the 2025 law. What was this? The provisions of the 1995 Act as amended in 2013 were to have an overriding effect “… notwithstanding anything inconsistent therewith con­tained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Original Waqf Act.” This was also inserted for the first time in 2013. The Supreme Court agreed that just as introduction of a provision is permissible, so is a deletion. The change can be seen as a measure to make Waqf dona­tions a genuine act of piety rather than a subterfuge to cloak illegalities.

The court has stayed the provision that Waqf can­not be done without proof that the donor has practised Islam for five years until the government frames relevant rules. Contrary to some commentary, the court has validated the provision that Waqf is an activity carried out by Muslims and there is a need to protect victims of fraudulent practices such as opportunistic conversions. It further points out that anyone desirous of making a genuine donation, whether Muslim or non-Muslim, can do so by way of a trust or procedures laid out in civil law.

In a more substantial intervention, the Supreme Court stayed the provision of the new Act that said a state government on receiving a recommendation by the concerned revenue official on the validity of a Waqf claim on government property can ask the Waqf Board to change the record.This cannot be done until an appeal is finally decided by the tribunal and is subject to further orders by the high court. But at the same time, no third-party rights can be created in respect of such properties. The caveats, however, do not take away from the fact that the Waqf Act, 2025 stands. Its true significance lies in that it sets right deformities passed off as ‘secular’ virtues and provides protection to both Muslims and non-Muslims.

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