8 Reasons Why GOI’s Waqf Law Is Discriminatory

medium120350262The Waqf (Amendment) Act, 2024, introduced in the name of reform, is a regressive measure that undermines constitutional guarantees, religious autonomy and established judicial principles that protect minority rights. It is a striking example of legislative overreach disguised as administrative efficiency.* The Act violates Articles 25 and 26, especially the latter, that guarantee not only the right to freely profess, practise and propagate religion but also the right to self-manage religious affairs. These are not absolute rights, but they’re certainly not so malleable that legislative enactments can substantially snatch away autonomy of religious institutions to self-govern.Supreme Court, in the first two decades of Independence itself, in cases like Ratilal Gandhi and Tilkayat Govindlalji Maharaj, reaffirmed that any law that takes away the right of religious denominations to manage their own affairs is unconstitutional. The present Act attempts exactly that.Constitutional rights are not ornamental, meant to decorate our statute books, while being steadily undermined in practice. They are substantive protections against state overreach. By circumventing these guarantees, the Act does not merely touch the periphery of the Constitution — it pierces its core.* The Act’s Section 11 effectively destroys democratic participation in the formation of state waqf boards. By mandating 100% members be nominated by state govt, it reduces the process to a bureaucratic formality, stripping communities of their right to elect their representatives.What remains of institutional autonomy if the entire board becomes an extension of the govt?* The Act allows for the bizarre possibility that only a minimum of 3 of 11 members of a waqf board might be Muslim. Can you imagine a Hindu temple board with a majority of non-Hindus? Or a Sikh gurudwara committee dominated by non-Sikhs?This is gross distortion of the concept of religious self-governance enshrined in Article 26. Such a provision isn’t merely tone-deaf; it violates fundamentally both constitutional parity and community dignity. The law mustn’t just be equal in text, but in spirit and application. Equality cannot be administered with one hand while rights are taken away with the other.* The amendment snatches away the right of waqf board members to remove their chairperson through a no-confidence motion. This is a clear affront to the principle of internal democracy and institutional accountability.Autonomy without accountability is hollow, but accountability without autonomy is tyranny.* Earlier provisions required a waqf board CEO to be a Muslim and to be selected from two board-recommended names. Section 15 removes both requirements. This dilutes the community’s role in selection to vanishing point. The only purpose is to tighten state control, where motivation is control, control and more control.When similar roles in other religious institutions remain community-centric and respected, why should one community alone be singled out for such dilution? Administrative convenience cannot become a euphemism for erasure of identity.* Diverse Acts like Karnataka Hindu Religious Institutions Act, Shri Jagannath Temple Act, Mata Vaishno Devi Shrine Act, Tamil Nadu Religious Endowments Act, Kashi Vishwanath Temple Act, Sikh Gurudwara Act and many more, preserve the autonomy of their respective religious communities. Not one allows outsiders a dominant role.Why, then, should Muslim religious institutions be treated differently? Is constitutional equality a one-way street?* The Act attacks the doctrine of ‘waqf by user’, a concept deeply rooted in Islamic tradition and upheld by SC’s Constitution bench in the Ram Janmabhoomi judgment. SC reiterated that waqf may be inferred through long-standing public religious use, even absent formal documentation.By attempting to outlaw this doctrine for the future (ie, prospectively), the Act sets a dangerous precedent of legislating established religious doctrine out of existence, an attempt likely to be held patently unconstitutional.* Section 3 introduces an ill-defined requirement that the person dedicating property must not only be a Muslim for five years but also must not have used any “contrivance” in making the dedication. What is a contrivance? Who defines it? On what grounds? This opens the floodgates to bureaucratic discretion, harassment and endless litigation.A term so vague and subjective will only make the wakf claimant go round and round in endless bureaucratic circles in govt departments. Vagueness of such drafting is not accidental but is motivated. It creates permanent insecurity and establishes permanent dependence on state sanction.Cumulative effect of these amendments is the erosion — if not obliteration — of a community’s right to manage its own religious affairs. In doing so, it sets a dangerous precedent that threatens every minority institution in India.The Constitution does not grant rights on the condition of majoritarian approval. It’s the entrenchment of safeguards against majoritarianism, precisely to protect minority rights from arbitrary use of state power. This Act is not reform but retaliation. Not rationalisation, but retribution.As the shayar evocatively put it, “The land is mine, the home is mine, the prayers are mine, the legacy is mine — yet I am asked to prove that I have a right to what is already my own.” Such legislations, draped in the garb of reform, become instruments of systemic exclusion. They generate nothing but doubt, divisiveness, distrust, and demoralisation.