April 2, 2025
Lok Sabha MP Kalyan Banerjee’s speech on The Waqf (Amendment) Bill, 2025, as Reported by Joint Committee and The Mussalman Wakf (Repeal) Bill, 2024
On behalf of All India Trinamool Congress, under the leadership of Mamata Banerjee, I strongly oppose the Bill in its entirety. Madam, the spirit of my speech is: “तूकहांदूबनेगा न मसु लमान बनेगा इांसान की औलाद है, इांसान बनेगा।” This present Bill covers importantly two areas of waqf. One, manage religious affairs of the Waqf Board. One of the arenas is to manage, control, and supervision of the religious aspects of the Muslims. Two, providing power to the State Government to decide the disputes in respect of the waqf property, including land and building. Article 26 of the Constitution of India provides that subject to public order, morality, and health, every religious denomination or any section thereof shall have the right: (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; (d) to administer such property in accordance with the law. Madam, the waqf is an institution for religious and charitable purposes. The Muslims have the constitutional right to manage their own affairs in matters of religion because the waqf property belongs to Allah. They also have the right to administer such property. The purpose of the Bill is a clear breach of the right of Muslims to perform their religious duties and manage their religious affairs, and therefore it is completely in violation of Article 26 of the Constitution of India. The Bill hitsthe basic structure of the Constitution. Under Article 246, subarticle 1, the Parliament has exclusive power to legislate a law under Schedule VIIof List 1. Under Article 246, sub-article 3, the State Legislature has the power to legislate the law, which is an exclusive power. This means that land comes under List 2, under Entry 18 of the State List. Lands and buildings vested in or in the possession of the State come under Entry 35 of List 2 of the State List. In the proposed Waqf Bill, the Parliament has no power to legislate any law in respect of theland and buildings vested in the possession of the State in respect of the waqfproperty because the State only has the power to legislate such laws. Therefore, the Parliament is now encroaching upon the power of the States to legislate in deciding the question of the land and buildings of the waqf. Thus, it is completely unconstitutional and dehors Article 246, sub-article 3 of the Constitution of India. This also hits the basic structure of the Constitution. By exercising any power under List 1 or List 3, the power of Statesto legislateunder List 2 cannot be encroached upon. There is a difference between a waqf recognized by Muslim law and religious endowment and a waqf recognized by Hindu law on one hand and a public charitable trust as contemplated by English Law on the other. The question has been considered by the Privy Council in Vidya Varuthi Thirtha vs. Balusami Ayyar long ago. Mr. Amir Ali, who delivered the judgment of the Board, observed: “It is to be remembered that a trust in the sense in which the expression is used in English law is unknown in the Hindu system…” “… When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution… In no case was the property conveyed to or vested in him …”. Similarly, thereis a basic difference. The hon. Minister was speaking about the Hindu trust. The Muslim law relating to trust differs fundamentally from the English law. Hindu trust follows English law. Muslim law does not follow English law. This is the basic difference. Mr. Ameer Ali said: “The Mohammedan law owes its origin to a rule laid down by the Prophet of Islam; and means the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings … As the result of the creation of a wakf, the right of the wakif is extinguished and the ownership is transferred to the Almighty”. It is religious. If it is religious, it comes within the ambit and scope of Article 26 of the Constitution. It further states: “The manager of the wakf is the mutawalli, the governor, superintendent, or curator”. But in that capacity, he has no right in the property belonging to the wakf. The property is not vested in him and he is not a trustee in the legal sense. Therefore, there is no doubt that the waqf, to which the Act applies, is in essential features, different from the trust, as is known, to English law. In Shayara Banoversus Union of India, 2017, Volume 9, SCC page 1, the Constitution Bench held that any legal provision should be made with the application of known principles of law. If any decision is taken without supporting principles of rule of law, it becomes unpredictable and such a decision is antithesis of a decision taken in accordance with the rule of law. This proposed Bill is just contrary to the well-settledprinciples of law, which is established in the country. Judgments have been pronounced not only by the Privy Council, but by the Supreme Court of India also. Madam, the various provisions of the Waqf (Amendment) Bill, 2024 is manifestly arbitrary and therefore cannot be passed by the Parliament itself. The waqf system in Islamic tradition stands as a testament to the enduring values of charity, community welfare, spiritual dedication rooted in the principle of Sadaqah Jariyah. Wakf properties in India form the backbone of the Muslim community’s social, cultural and religious life — playing a pivotal role in maintaining their collective identity. These endowments sustain mosques, madarasas and cemeteries while providing essential resources to marginalized sections of society, especially in environment where minority communities often struggle for equitable access to public purposes. This is not there, namely equality and equitable access, in the case of the Muslim. This is the reason we are opposing it. Over the years, excessive Government oversight has raised concerns about the erosion of autonomy and sanctity of waqf, which under Islamic law, is intended to function independently to serve its religious and charitable purposes. At the heart of the waqf system’s administration lies the State Waqf Board that acts as custodian of waqf properties, ensuring their proper management and alignment with the purposes defined by Islamic law. These boards have consistently worked to protect waqfproperties from mismanagement. Madam, the Waqf Act was centrally first introduced in 1953. Mr. Rijiju, the hon. Minister has also said this. Thereafter, so many Acts came including the 1995 Act, Amendment of 2013, and now this is coming. Now, by introducing clause 2, the title of the Act has been amended to Unified Waqf Management, Empowerment, Efficiency, and Development. There is no rational basis to make such amendment to the title of the Act. Every Act is intended to make the Act more efficient for development purpose. For example, the Companies Act was enacted in 1956, thereafter reenacted in 2013. The Act was brought to regulate the management, empowerment, efficiency, and development of the control of the companies. The Waqf Act, 1995, had various provisions for management, empowerment, efficiency, and development. Therefore, the proposed amendment to the title is absolutely unwarranted. The title, which has been used for nearly 75 years, has no necessity to be amended unless the Government wants to have the satisfaction that something new has been done. The proposed amendment to the Waqf Act, which includes a tacit attempt to alter or dilute the historical and religious significance of the term ‘Waqf’, is deeply concerning and warrants strong objection. The term ‘Waqf’ is not merely legal or administrative. It is a sacred concept deeply rooted in Islamic tradition and jurisprudence. Why are you taking this away? The historical development of Waqf legislation in India is: the Bengal Waqf Act, 1934; the Uttar Pradesh Muslim Waqf Act, 1960; the Waqf Act, 1954; and the subsequent unification under the Waqf Act of 1995. They have always retained the sanctity of the term. These laws, while designed to provide statutory governance, have consistently respected the essence of Waqf as a concept grounded in the Islamic law. Madam, the insertion of clause 2(a) tantamountsto nullifying all the earlier judgments, decrees, and orders of any court in respect of the Waqf and the Trust. This attempt is basically taking away the rights of the Muslims that they have accrued. Any attempt to nullify the Supreme Court judgment by legislative process is illegal and unconstitutional. Clause 3(IX) of the proposed Bill states that various sects and sub-sects have been created. This attempt to create subsects without having any rational object is not a good sign for any religion, caste, or creed. If the Constitutional provisions empower Parliament to create caste, sub-caste, or sub-class, only Parliament can do so like the Scheduled Castes were created in Hindus. But the Constitutional provision does not empower Parliament. Under the guise of the Waqf (Amendment) Bill 2024, they are creating Aga Khani Waqf, Bohra Waqf, etc. The intention to legislate such a classification of Waqf Board based on sub-sects shows that the Ruling Party has evil intentions. If the title speaks about unification, the creation of various Waqf Boards on the basis of sub-sects itself creates a de-unification between the sects and sub-sects of the Muslims. Madam, Clause 3F(a) of the proposed Bill defines Government organizations, including municipalities, panchayats, and autonomous bodies of the Central Government under Part 9A of the Constitution. Under the scheme of Part 9A, the municipalities and the panchayats are self-government and autonomous bodies. How can the properties of the self-government bodies be treated as Government properties? In a Constitutional provision, it does not make sense. By this law, the panchayat and municipality have been described as Government properties. It is not a Government property; they are local selfgovernment bodies. There is a distinction. Therefore, this provision is bad. Madam, the introduction of the definition of Government property seems to be mischievous. Why will Waqf be allowed to define Government property? This is an attempt to legalize illegal occupation or occupation of the Waqf property by Government organizations. There is another sin here. In the JPC, we said repeatedly, give us the data where the Government has occupied the Waqf property. Nothing is there. And in Rajasthan, there are extreme cases; 80 per cent of the Rajasthan Waqf propertieshave been occupied by the Rajasthan Government itself. Practising Islam for at least five years as a precondition for making Waqf is thoroughly unreasonable, irrational, and manifestly arbitrary. Under the scheme of the Constitution of India, no person can be compelled to practice his own religion. If no person can be compelled to practice his own religion, then such person cannot be debarred from either offering his property to God or from being a Hindu or a Muslim or from any other religion. Practising religion means day-to-day performance of his religious duty. In a secular democratic country like ours, no one can compel anybody to perform any religious duty. If such a provision cannot be made either in the Constitution or in any other statute, no mandatory provision can be made for practising Islam for at least five years for making waqf. Even if I discharge my religious duty on my own at any place, I cannot be compelled to say whether I am performing religious duty or not performing the same. How can anyone ask me whether I am performing religious duty or non-religious duty? Is it not a violation of the Constitution. What power has the Constitution given you to ask me whether I am discharging religious duty or not. A man can believe in performance of religious duty at any point of time of his life, even before death. Performing a religious duty cannot be the basis of belonging to that religion. Even in a Hindu Mandir, which is governed by an Act, like Puri Jagannath Temple or Kashi Vishwanath Temple, there is no such provision that a person has to practice Hindu religion for at least five years and then only he can donate anything to the deity. Madam, I cannot donate. If I want to donate, it is my choice. How can my choice be controlled? I donate everywhere. I donate in Hindu Mandir. I donate in Muslim property. I donate in the Christian property. I donate in the Buddhist property. I donate to vagrants. I donate everywhere. How can you control this act? By reason of insertion of this clause, no other person of a religion can make over any property to waqf. The proposed amendment is thoroughly misconceived, arbitrary and irrational, and therefore, violates Article 14 of the Constitution of India. In this Bill, Clause 3(ix) omits the existing Clause 3R(i). That means waqf by user is being taken away. Waqf by user is a long-standing practice of Muslims. In our country, waqf by user has been a very common practice decades after decades, rather from time immemorial. Waqf by user is a practice. The concept of waqf by user was recognized in our country in the case of Court of Wards for the property of Makhdum Hassan Bakhsh vs. Ilahi Bakhsh & ors., 1912, HCC online, page 45. Madam, the hon. Supreme Court in the matter of Syed Mohd. Salie Labbai (Dead) by L.Rs. and others vs. Mohd. Hanifa (Dead) by L.Rs. and others,1976, in paragraph 34, 36 and paragraph 39, categorically accepted this waqf by user. There is a necessity in case of prayers offered in congregation. A single Muslim can also offer his prayers with or without an imam, but the prayer is in a congregation of a Jamaat or offered only behind an Imam who leads the prayers. And Islam is an extremely modern and liberal religion. There is no question of any person being denied admission in a Mosque for the purpose of offering prayers. And that is why the law is so strict that the moment a person is allowed to offer his prayers in a Mosque, the Mosque becomes dedicated to the public, and therefore it’s a waqf property. Finally, it is not necessary for the dedication of public mosque. Madam, in that judgment, it has been said that when a person erects a building with the object of dedicating it as a mosque and permits people to offer prayers therein without declaring thathe has constituted it into a mosque and prayers are offered and they build Jamaat, the mosque becomes irrevocably dedicated. Madam, I will just give one instance. In the Raisina village, where the residence of the President of India is there, there was a big village long back. In the big village, there are so many Muslims. One Hindu dedicated his property for offering their namaz, and that property is the mosque in front of Parliament. Who has not gone there? Shri Abdul Kalam had gone there. All important political leaders, including Bhutto and the Imam, who is sitting here as one of our colleagues, a Member of Parliament, have also gone there. If prayers are offered once in a mosque, it is sufficient to constitute a good dedication. Dedication has been clearly said. Paragraph 39 of the judgement reads. “The founder must declare his intention to dedicate a property for the purpose of mosque. No particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder, either expressed or implied.” If this is the principle of law, long-standing in our country, how can you say today, “You have to register waqfby user. You have to give a declaration”?’ I do not need to do that. Therefore, through this Bill, you are trying to take away the basic reason of all the judgements of the Supreme Court. This is not correct and this is bad. Madam, Shri B.K. Mukherjea said, ‘Neither a document nor explicit expressed words are essential for dedicating property to religious or public purposes; such dedication can be implied from the permitted use of property for sufficient period of time. The conduct of those properties is presumed to indicate dedication.’ It has been said by Shri B.K. Mukherjea on Hindu law of religious and charitable trusts. I do not think that there is anyone in India who understands Hindu law better than Shri B.K. Mukherjea. There is no one. He has said so in his book. Anyway, new concepts andsmart men have come like a smart phone. Therefore, everything is being done. In the case of M. Siddiq through Lrs Mahant Suresh Das, 2021 SCC 1, `wakqby user’has been expressly mentioned. Our jurisprudence recognizes the principles of `Waqf by user’ even absent and express deed of dedication. This is being taken away. It is a long judgment, I will not read it. Therefore, it hits the basic things. Please refer to Clause 3, sub clause 5 of the proposed Bill. The right of verbal declaration of waqf has been taken away. This is contrary to the history of creating waqf by any individual. Several properties are dedicated waqf by a good number of persons to be made as waqf property. Madam, there is deletion of the word `either verbally or in writing’. The right of the Muslim is protected under Articles 25 and 26 of the Constitution. Therefore, it hits the basic structure of the Constitution. Now, I refer to the case of Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta (2004) 12 SSC 770. It pertains to our State. When CP(I)M was in power, they killed Ananda Margis. In that case, this judgment has come. The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine of belief, but extends to acts done in purpose of religion, and therefore contains a guarantee for rituals, observances, ceremonies, and modes of worship which are essential or integral part of religion. What is waqf then? It is an integral part of religion. Essential part of religion means the core beliefs upon which a religion is founded. The core belief of the Muslim is that Allah is there, I have dedicated my property to Allah, therefore it is a waqf property. It is upon the quintessential power that the superstructure of a religion is built without which religion will be no religion. Nobody can say that essential part or practice of one’s religion has changed from a particular date or by an event. The proposed amendment clause proceeds with the assumption that waqf properties are riddled with the issues of mismanagement. It appears that the primary basis of this assumptionis the quantum of pending litigation surrounding waqf. If this is the basis of identifying a body as mismanaged in terms of the pending litigation, it cannot be a rational basis of determining the standard of management of a body. In fact, the hon. High Court of Delhi in one of the cases against Union of India has given the details of the pending cases. If pending cases are the ground for bringing the legislation, now I tell you the statistics. The number of pending civil cases in the Supreme Court is 64,687. The number of pending criminal cases in the Supreme Court is 18,235. The total number of pending cases is 82,922. In waqf, all over India, 14,000 to 15,000 cases are pending. It cannot be said to be the basis. In Clause 4, there is insertion of section 3B which mandates that every waqf, prior to the commencement of this Act, shall file the details of the waqf and the property dedicated to the waqf. I have already dealt with that. The Waqf Board under this statute has declared a property to be waqf. In that case, the Government has challenged the same before the appropriate court of law. Madam, this is very important, I have missed it. According to the Minister, the State Government officer above the District Magistrate will decide the issue. How it can be so? How can the State be a judge of its own cause? The State will decide: “This is my property, and it will be binding.” The problem is this. The moment it will be claimed, it will not be treated as a waqf property. The title of the land can be decided only by the civil court, not by anybody else. The power which has been given to decide the title of this land whether it is a Government land or not, that is covered by the State List under Entry 35 of List II in the Seventh Schedule of the Indian Constitution. The Parliament has no power to legislate law in respect of that. If the Waqf Board under the main statute has declared a property to be waqf, and in case the Government has challenged the same before the appropriate court of law, by amending this law, it cannot be done. A person cannot be a judge of his own cause. It has to go to a civil court. It is a well-known principle. Everyone knows about it. If there is a dispute regarding a civil law, who will decide? It will be decided by a civil court. The proviso itself indicates the predetermined mind of the Government. The Waqf Board itself is a statutory body. According to Section 3C (4), if there is any wrong writing in the records of the Waqf Board, that can be challenged by the Government in accordance with law. The Government cannot direct the Waqf Board to make the correction. This itself is hit by the doctrine of dictation. The hon. Supreme Court time and again reiterated that revenue records are not documents of title and they do not vest the right of ownership as the property to the individuals named in the land records. So many references are there. These are elementary things. Any law student also knows about this bunch of laws. Unfortunately, this has not been taken care of by the Central Government. In Clause 5 (e), the proposed amendment amounts to creating sub-classes amongst the Muslims for the purpose of giving birth to disputes. Coming to Clause 9 of the proposed Bill, proviso to Clause 9 is totally unacceptable as it provides that two Members appointed under this sub-section shall be non-Muslim. The exclusion of Muslim community persons from holding the post of two Members in the Waqf Board is hit by Article 14 of the Constitution of India which provides equal opportunity to everyone. In the case of Hindu temples, the non-inclusion of Hindus cannot be imagined. We cannot imagine it. For example, under Section 6(2) of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, it has been specifically mentioned that there are three eminent Hindu scholars well-versed in Hindu theology. A line has been said, a point has been taken to see. This is the State law. But it is a Central law. A law is a law. Law means it is within the ambit of Article 246 of the Constitution of India. Law does not mean beyond Article 246. If a law is within the ambit of Article 246 of the Constitution of India, there cannot be discrimination between a State law and a Central law. An unthinkable stand has been taken. I cannot think about this. After 44 long years of practice, I cannot say, I cannot think that no, it is a State law; it cannot be compared with a Central law. What is this? A law is a law. Law is having its own force. Read Article 13 of the Constitution of India also. What is law? Clause 11 of the proposed Bill is seeking amendment of Section 14. The amendment of the original Act suffers from same illegalities. Clause 14 of the proposed Bill whereby Section 20A of the original Act, that is removal of the Chairperson by vote of No-Confidence, has been deleted. Such deletion is also improper and illegal. It is because if the Chairperson does not enjoy the confidence of other Members, how can he sit there? It is a question of democracy. Madam, can you sit there if you do not enjoy the majority and the confidence. If you cannot enjoy the confidence of the majority, you have to leave. That is the democratic setup in our country. Madam, amendment of Section 36 sub-section (iii) is effectively taking away the power of the Waqf Board regarding receiving of registration of waqf, and such an amendment has been envisaged to empower the Central Government in an indirect manner to control everything. All powers have been taken away. Why are you not making it? The Minister of Minority Affairs will decide everything. He will be the supreme person and nothing is required. It is finished. You can do it. Clause 20 of the Bill is amending Section 40 of the original Act. If Section 40 is deleted, the Waqf Board itself will be a toothless doll. If Section 40 is amended and Section 40 is taken away, the Waqf Board will be a toothless doll only. If Section 40 is deleted, then there is no necessity to keep the Waqf Board itself. Do not keep it. Keep the power with the Minister in the Central Government. The Minister will decide. What is the necessity of a Waqf Board? Everything will be done by him. Clause 20 is taking away the power to regulate a statutory body like Waqf Board. Madam, I will take some time. I am reading very fast. I am going very fast. The proposed Amendment Bill under Clause 21 seeking amendment of Section 46 of the original Act once again empowers the Central Government to make regulations with respect to so and so. Therefore, the power of the State Governments has been taken away. Does it not violate the federal structure of this country? Every power of the State Governments has been taken away. Only the Centre will do it. Does it not violate the fundamental character of the Constitution? Clause 22 of the Bill is seeking amendment of Section 47 of the Act. The proposed amendment empowers the Central Government to call for the audit of any waqf by the C&AG. How can the C&AG make an audit? The C&AG can make an audit in the case of the Consolidated Fund under the Constitution. How can the C&AG make an audit beyond the Consolidated Fund? This is absolutely illegal and improper. Madam, as regards Section 50, under the existing provision of the Waqf Board, mutawalli is there. Then, comes Section 83. By the proposed amendment, the number of members of the Tribunal has been reduced to two, and it removes one person having knowledge of Muslim law. This has been done and has been amended. Now, the order of the Tribunal goes to High Court under appeal. Now, it is a statutory appeal. There is no provision for condonation of delay, if there is any delay. It is a direct and statutory appeal. You have not given any power to grant any interim relief to the persons. How can it be an adequate remedy? Earlier, it was there. One could have gone, as per Article 226 of the Constitution, for a judicial review. The High Court is having the power to condone delay and also to pass an interim order. You have also taken away this power. Therefore, this provision is not an adequate remedy so far as the waqf property is concerned. The High Courts have not been given any power. Madam, now, I come to Sections 107 and 108. I am going very fast. I am not taking even water. The proposed amendment has an effect on the decision to replace the Survey Commissioner. Then, in Clause 41 of the proposed amendment, Section 107 of the Act is deleted, and thereby applicability of the Limitation Act is dehors. How will the Limitation Act be applied? If the Limitation Act will apply, so many disputes will come. This is the intention of the Government. It is open. सब ओपन, सब खलुा हैअभी, अभी खलु गया हैरास्ता, इंडिया में ताला लगा दो, डहन्दू-मडुस्लम, डहन्द-ूमडुस्लम लगा दो, यही तो उन लोगोंइंटेंशन है।इससेक्याहोगा? This is not correct. This is completely bad. The proposed Waqf Bill proposes significant things. In Hemaji Vs. Bhikabhai, the Supreme Court has criticised the concept of adverse possession as unjust, and it was urging reforms to protect rightful property. Therefore, this is a clear attempt on the part of the Government to curtail the rights of the Muslims in our country. यह ठीक नहीं है। “डहन्दूया मडुस्लम के अहसासात को मत छेडिए, अपनी कुरसी के डलए जज्बात को मत छेडिए, छेडिए एक जंग, डमल-जलु कर गरीबी के डखलाफ, दोस्त मेर, े मज़हबी नग़मात को मत छेडिए।” “हम अपनी जान के दश्ुमन को अपनी जान कहतेहैं, मोहब्बत की इसी डमट्टी को डहन्दस्ुतान कहतेहैं।” “अब तो मज़हब कोई ऐसा भी चलाया जाए, डजसमेंइंसान को इंसान बनाया जाए।” Madam, thanks.
