Introduction
In a move that has sparked significant debate, the Union government has recently proposed amendments to the Waqf Act, 1995, which governs the administration of Waqf properties in India.[1] The proposed amendments, which are expected to be tabled in the 2024 Monsoon Session of Parliament, include several fundamental changes that have far-reaching implications for managing Waqf properties.[2] Among these is the proposal to strip the Waqf Boards of their powers to declare a property as Waqf.[3] Under the current Act, Waqf Boards have the authority to unilaterally identify and declare properties as Waqf, which then brings these properties under the Board’s management.[4] The proposed amendment transfers this power to the district collector, who would be an arbiter in determining whether a property is Waqf or government land.[5]
India’s religious landscape is as diverse as it is intricate, with many faiths coexisting within its borders. Religion plays a pivotal role in the lives of its people, influencing culture, politics, and social dynamics. However, the governance of religious institutions in India, particularly under the Waqf Act and the state control of Hindu temples[6], reveals a complex interplay of power, politics, and faith. These governance structures are not merely administrative frameworks; they reflect deep-rooted biases, historical legacies, and ongoing struggles for autonomy and control.
The Waqf Act of 1995, which governs the management of Islamic endowments, and the state laws that regulate Hindu temples provide a lens through which we can examine the broader issues of religious freedom, secularism, and state intervention in India. The recent amendments to the Waqf Act have brought these issues to the forefront, sparking debate nationwide.
These proposed changes to the Waqf Act raise broader questions about the governance structures of religious institutions in India and the state’s role in managing religious affairs. The proposed amendments, aiming to enhance state oversight and regulation, represent a necessary step towards addressing the shortcomings of the traditionally self-governing Waqf system, which has often needed more transparency and accountability.
This development is not unique to the Waqf system; it reflects a larger pattern of state involvement in the governance of religious institutions in India, as seen in the state control of Hindu temples under various state laws. The proposed changes to the Waqf Act thus provide an opportunity to examine the biases and inconsistencies in the governance of religious institutions in India and to consider the implications of these structures for religious freedom, secularism, and the autonomy of religious communities.
This article explores the governance structures of religious institutions in India, focusing on the Waqf Act and state control of Hindu temples. It examines the historical context and evolution of these governance structures, analyses the biases they perpetuate, and considers their implications for the broader Indian society. It aims to shed light on the complex interplay between religion, politics, and state power in India and contribute to the ongoing debate on the state’s role in managing religious affairs.
Historical Context of Waqf
The Waqf system in India has a long and complex history that reflects the country’s evolving dynamics of religious, social, and legal structures. Waqf, which refers to the dedication of property for religious or charitable purposes, has played a significant role in the socio-economic and religious life of Indian Muslim communities. However, the functioning of the Waqf board and the management and governance of Waqf properties have raised many issues of concern. Understanding the Waqf Act’s historical context and ongoing challenges is crucial for grasping the current debates surrounding its proposed amendments.
The concept of Waqf originates in early Islamic law, where it was established to provide for religious and charitable activities. A Waqf is typically a perpetual endowment, meaning that once a property is dedicated as Waqf, it cannot be sold, inherited, or otherwise transferred. The income generated from Waqf properties is to be used in accordance with the donor’s intention. It is usually allocated to fund mosques, religious education, healthcare, and other social welfare activities.
In India, the Waqf system was introduced during the early Islamic conquests and was further institutionalised during the Mughal period. The Mughal rulers and their nobles established numerous Waqf properties across the subcontinent, ostensibly dedicating significant tracts of land and wealth to religious and charitable causes. These Waqf properties were managed by trustees known as Mutawallis. However, the Waqf system in India was often plagued by mismanagement and lack of accountability. The decentralised nature of Waqf administration and the absence of a formal legal framework led to frequent disputes over property ownership and the misuse of Waqf assets. These challenges became more pronounced with the advent of British colonial rule in India.
The British colonial administration sought to regulate the Waqf system through formal legislation. The first significant legal intervention came with the Bengal Regulation XIX of 1810, which allowed the British government to take control of Waqf properties if they were found to be mismanaged.[7] This regulation began a series of colonial efforts to control religious endowments, which were viewed as potential sources of revenue and influence.
In 1863, the British introduced the Religious Endowments Act, which extended state control over Waqf properties and allowed the government to appoint trustees for their management.[8] This Act was met with resistance from the Muslim community, which viewed it as an infringement on their religious autonomy. The dissatisfaction with British policies regarding Waqf properties culminated in the enactment of the Mussalman Waqf Validating Act of 1913.[9] This Act recognised the legal validity of Waqf-alal-aulad, or family Waqfs, where the income from the endowment could be used to support the donor’s descendants.[10] The 1913 Act was a significant milestone in the legal history of Waqf in India, providing a more transparent legal framework for administering Waqf properties.
However, the colonial administration’s attempts to regulate Waqf were often inconsistent and poorly implemented, leading to continued corruption, mismanagement, and encroachment on Waqf lands. The British focus on revenue generation frequently conflicted with the religious and charitable purposes of Waqf properties, exacerbating the challenges faced by the system.
After India gained independence in 1947, the new government recognised the need to reform the administration of Waqf properties to address the issues inherited from the colonial period. The Waqf Act of 1954 was the first significant post-independence legislation to centralise the administration of Waqf properties under state Waqf Boards.[11] These Boards oversaw Waqf properties’ registration, maintenance, and development, ensuring they were used for their intended religious and charitable purposes.
The 1954 Act, however, was plagued by significant implementation challenges, mainly due to the Waqf system’s resistance to oversight and transparency. The failure to adequately enforce the Act’s provisions for the mandatory registration of Waqf properties led to rampant underreporting and widespread encroachment on Waqf lands. These persistent issues underscored the need for stricter reforms, culminating in the Waqf Act 1995.[12]
The Waqf Act of 1995 sought to strengthen the regulatory framework for Waqf administration by making the registration of all Waqf properties mandatory and establishing Waqf Tribunals to adjudicate disputes related to Waqf properties.[13] The Act also created the Central Waqf Council, which was responsible for advising the government on Waqf matters and monitoring the functioning of the state Waqf Boards.[14]
Despite these reforms, the Waqf system in India continued to face significant challenges. Corruption, mismanagement, and illegal encroachments on Waqf properties persisted, and the Waqf Boards were often criticised for their lack of transparency and accountability.
The Waqf (Amendment) Act, 2013 granted Waqf Boards the authority to declare properties as Waqf, even if not previously listed, and shifted the burden of proof to property owners.[15] This allowed Waqf Boards to claim ownership, requiring individuals to prove otherwise in legal disputes. The amendment’s broad powers and the shift in responsibility led to significant concerns over potential misuse and unjust property claims. The law gave the Waqf Boards considerable power, often at the expense of private property rights and was downright ludicrous in substance.
The ongoing challenges in administering Waqf properties have led to calls for further reforms, culminating in the recent proposals to amend the Waqf Act. These proposed amendments, which include stripping the Waqf Boards of their powers to declare properties as Waqf and introducing non-Muslim members into the Waqf Boards, have sparked controversy and debate. Critics argue that these changes could undermine the autonomy of the Waqf system and facilitate the government’s control over Waqf properties. In contrast, proponents claim they are necessary to improve transparency, accountability, and governance.
The historical context of the Waqf system in India, from its origins in Islamic tradition to the challenges of colonial and post-independence governance, underscores the complexity of these issues. As the debate over the proposed amendments to the Waqf Act continues, it is essential to consider both the historical legacy and the contemporary challenges facing the Waqf system to chart a path forward that respects religious autonomy while ensuring effective governance.
Historical Context of Governmental Control of Hindu Temples
In India, the state’s management and control of Hindu temples have long been a subject of intense debate and controversy. Unlike Islamic Waqf properties, managed by community-based Waqf Boards, Hindu temples in many states are directly controlled and administered by the government. This state control, rooted in both colonial practices and post-independence legal frameworks, has raised significant questions about religious autonomy, the role of the state in religious affairs, and the implications for secularism in India.
The origins of state control over Hindu temples can be traced back to the British colonial period. In its quest to control India’s vast religious and cultural landscape, the British administration began to regulate temple revenues and administration. This was done under the pretext of preventing mismanagement and ensuring that temple funds were used for public welfare rather than being appropriated by corrupt or inefficient temple authorities. The British enacted several laws to regulate temple administration, including the Madras Religious Endowments Act of 1863, which allowed the government to assume control of temple revenues and appoint trustees to manage temple affairs.
This colonial intervention set a precedent for state involvement in religious institutions, a practice carried forward into the post-independence period. The British rationale of ensuring good governance and preventing corruption was used to justify continued state control despite the end of colonial rule. This control has persisted in various forms, with different states enacting laws to regulate the management of Hindu temples and their properties.
After India gained independence in 1947, several states enacted laws to formalise government control over Hindu temples. One of the most significant pieces of legislation in this regard is the Tamil Nadu Hindu Religious and Charitable Endowments (HR&CE) Act of 1959.[16] This Act gives the state government extensive powers over the administration of Hindu temples, including appointing trustees, overseeing temple finances, and even managing temple rituals.[17]
Under the HR&CE Act, the government is authorised to appoint Executive Officers to manage the day-to-day operations of temples.[18] These officers are responsible for ensuring that temple funds are used in accordance with the law and for the benefit of the community. The Act also allows the government to take over a temple’s administration if it is mismanaged or allegations of financial irregularities exist.[19] In practice, this means that the state can exert significant control over the administration of temples, including decisions about how temple funds are allocated and spent.
Tamil Nadu is not unique in this regard. Other states, particularly in South India, have similar laws allowing extensive government control over Hindu temples. For example, the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act of 1987 provides for state oversight of temple finances and management.[20] In Karnataka, the Hindu Religious Institutions and Charitable Endowments Act of 1997 gives the state similar powers to regulate temple administration.[21]
The state control of Hindu temples has been a source of ongoing controversy and legal challenges. Critics argue that state intervention in temple administration violates the fundamental right to freedom of religion, as enshrined in the Indian Constitution. They contend that the government’s involvement in religious affairs undermines the autonomy of religious institutions and is inconsistent with the principles of secularism.
One of the central criticisms of state control is that it has led to the mismanagement and exploitation of temple resources. There have been numerous allegations of corruption and financial irregularities in the administration of temples, with temple funds being diverted for purposes unrelated to the religious or charitable activities for which they were intended. Critics also argue that the government’s control over temple administration has eroded the traditional role of temple priests and trustees, who have historically been responsible for managing temple affairs.
Several legal challenges have been brought against state control of temples, with petitioners arguing that such power is unconstitutional. In some cases, the courts have upheld the constitutionality of state intervention while also emphasising the need for the government to respect the religious autonomy of temples. For example, in the landmark case of Seshammal v. State of Tamil Nadu[22], the Supreme Court of India upheld the HR&CE Act. Still, it cautioned that the state must not interfere with religious practices and rituals.
Despite these rulings, the debate over state control of temples remains unresolved. Proponents of state intervention argue that it is necessary to prevent the misuse of temple funds and ensure they are used for the public good. They contend that government oversight is justified in cases where temples are found to be mismanaged or where there are allegations of financial irregularities.
The issue of state control of Hindu temples raises broader questions about the relationship between religion and the state in India. On one hand, the state’s involvement in temple administration can be seen as a violation of the principle of religious autonomy, a cornerstone of secularism. On the other hand, proponents of state control argue that the government has a legitimate interest in ensuring that religious institutions are managed to serve the public interest.
The selective nature of state control, where Hindu temples are subjected to extensive government oversight while religious institutions of other communities, such as mosques and churches, enjoy greater autonomy, has justifiably led to accusations of bias and discrimination. This disparity has fuelled ongoing debates about the role of the state in religious affairs and the need for a more consistent and equitable approach to the governance of religious institutions in India.
Legality and Constitutional Implications of the Waqf Act and State Control of Hindu Temples
India’s legal and constitutional framework is designed to ensure equality, secularism, and non-discrimination. However, the governance of religious institutions, particularly under the Waqf Act for Muslim endowments and state control of Hindu temples, raises significant concerns regarding the principles of equality and secularism. The Waqf Act has been criticised for providing preferential treatment to Muslim religious institutions, while the state control of Hindu temples has been seen as discriminatory against the Hindu community. This section examines both governance structures’ legal and constitutional implications, using relevant cases and legal principles to highlight the disparities.
Waqf Act and Its Constitutional Challenges
The Waqf Act, 1995, as amended in 2013 and with proposed amendments in 2024, provides a unique governance structure for Islamic endowments in India. Once declared, Waqf properties are managed by state Waqf Boards, which have considerable autonomy and power over these assets. This governance structure, however, raises several constitutional concerns, particularly regarding Article 14 (Right to Equality)[23] and Article 27 (Freedom from taxation for promotion of any religion)[24] of the Indian Constitution.
Article 14 and the Principle of Equality. Article 14 of the Indian Constitution guarantees the right to equality before the law and equal protection of the laws to all citizens.[25] The Waqf Act, however, grants a special status to Muslim religious endowments, with state Waqf Boards enjoying substantial autonomy in managing these properties. This special status has been widely criticised for undermining the principle of equality, as it grants preferential treatment to one religious community at the expense of fairness and uniformity under the law.
In several cases, the Supreme Court of India has emphasised the importance of equality and non-discrimination. In the State of West Bengal v. Anwar Ali Sarkar (1952) case, the Court held that any classification under law must be reasonable and not result in arbitrary discrimination. The Waqf Act’s provisions, which allow for the exclusive management of Muslim endowments by state Waqf Boards, can be seen as creating an unreasonable classification that privileges one religious community over others, thereby violating Article 14.
Article 27 and State Funding of Waqf. Article 27 of the Constitution prohibits the state from compelling any person to pay taxes for the promotion or maintenance of any particular religion.[26] However, the Waqf Act allows public funds to manage Waqf properties and the functioning of Waqf Boards. This has sparked concerns that the state may be indirectly endorsing a particular religion, potentially violating the spirit of Article 27 and compromising the secular foundation of the nation.
In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[27], the Supreme Court held that the state could not use public funds to support religious activities. The Waqf Act’s provision for state funding of Waqf Boards could be seen as contravening this principle, as it allows taxpayer money to support the administration of Islamic endowments.
State Control of Hindu Temples: Discrimination and Legal Precedents
While the Waqf Act grants significant autonomy to Muslim religious institutions, the state control of Hindu temples under various state laws is seen as discriminatory against the Hindu community. Unlike Waqf properties, which are managed by community-based boards, Hindu temples in several states are directly controlled and administered by the government. This disparity has led to accusations of discrimination and has been challenged on constitutional grounds.
Article 25 and Freedom of Religion. Article 25 of the Indian Constitution guarantees all individuals the freedom of conscience and the right to freely profess, practice, and propagate religion.[28] However, the extensive state control over Hindu temples has been criticised as an infringement on the religious autonomy of the Hindu community.
In the landmark case of S.P. Mittal v. Union of India[29], the Supreme Court held that the right to manage religious institutions is integral to the freedom of religion guaranteed under Article 25. The state control of Hindu temples, which includes the appointment of government officials to manage temple affairs and the use of temple funds for secular purposes, can be seen as a violation of this right.
Furthermore, in Sri Venkataramana Devaru v. State of Mysore[30], the Supreme Court ruled that religious denominations have the right to manage their own affairs in matters of religion. The state’s involvement in the administration of Hindu temples, particularly in the management of temple rituals and finances, could be seen as a violation of this right, as it interferes with the religious autonomy of Hindu communities.
Article 26 and the Right to Manage Religious Affairs. Article 26 of the Constitution guarantees every religious denomination the right to establish and maintain institutions for religious and charitable purposes and to manage its affairs in matters of religion. The state control of Hindu temples, mainly through laws like the Tamil Nadu HR&CE Act of 1959, has been challenged as a violation of this right.
In Seshammal v. State of Tamil Nadu[31], the Supreme Court upheld the constitutionality of the HR&CE Act but emphasised that the state must not interfere with religious practices and rituals. However, critics argue that the state’s extensive control over temple administration, including appointing trustees and managing temple funds, effectively undermines the autonomy guaranteed under Article 26.
Disparity and Discrimination. The selective application of state control, where Hindu temples are subjected to extensive government oversight while religious institutions of other communities, such as mosques and churches, enjoy greater autonomy, has led to accusations of discrimination. This disparity is stark compared to the autonomy Waqf properties enjoy under the Waqf Act.
In N. Adithayan v. Travancore Devaswom Board[32], the Supreme Court observed that any state action must be consistent with the principles of equality and non-discrimination. The state control of Hindu temples, which is not applied to religious institutions of other communities, raises questions about the constitutionality of such selective intervention.
Unveiling the Hypocrisy and Charting a Way Forward
The governance structures of religious institutions in India, particularly under the Waqf Act and the state control of Hindu temples, reveal a deeply entrenched and systematic bias in the application of state power, which has long favoured specific religious communities over others. On the one hand, the Waqf Act grants sweeping autonomy to Muslim religious endowments, allowing them to manage vast swathes of property with little to no governmental oversight. This autonomy has not only facilitated the accumulation of considerable wealth and influence by Waqf Boards but has also fostered an environment ripe for misuse, corruption, and the exploitation of legal loopholes. The unchecked power wielded by Waqf Boards has led to widespread concerns about preferential treatment, especially when juxtaposed with the extensive state control over Hindu temples, where the religious autonomy of the Hindu community has been systematically undermined and eroded.
The stark contrast between the treatment of Waqf properties and Hindu temples highlights a disturbing double standard. While Waqf Boards operate with minimal interference, often acting as a law unto themselves, Hindu temples are subjected to oppressive state control, where temple revenues are frequently diverted for secular purposes, and the religious rights of the Hindu community are trampled upon. This disparity in governance not only violates the principle of equality but also reflects a broader agenda of appeasement and favouritism that has been perpetuated under the guise of secularism.
The Places of Worship (Special Provisions) Act of 1991 further exacerbates this systemic bias by freezing the status of religious places as they were on August 15, 1947. Although this Act is often portrayed as a measure to preserve communal harmony, in reality, it has disproportionately targeted Hindu claims on religious sites, such as the Kashi Vishwanath Temple and the Krishna Janmabhoomi, while conveniently protecting the status quo of Islamic structures that were often erected on the ruins of Hindu temples. This legal freeze has effectively cemented historical injustices, denying the Hindu community the right to reclaim and restore their sacred sites while shielding the symbols of past conquests under the pretext of maintaining peace.
In this context, the proposed 2024 amendments to the Waqf Act represent a long-overdue and necessary intervention to address some of these deep-rooted inequities. By stripping Waqf Boards of the unilateral power to declare properties as Waqf, the amendments seek to curtail the rampant misuse of this authority, which has often been exercised without due process or accountability. The introduction of non-Muslim members into Waqf Boards is another critical measure aimed at breaking the monopolistic control that has allowed these bodies to operate in a cloak of secrecy. These changes are designed to enhance transparency, accountability, and fairness in the management of Waqf properties, ensuring that these assets are not misappropriated or used to further sectarian interests at the expense of the broader community.
Moreover, the involvement of district collectors as arbiters in disputes over Waqf properties introduces a much-needed impartial mechanism to prevent the wrongful declaration of properties as Waqf. This step is crucial in safeguarding public and private lands from being unjustly claimed under the guise of religious endowment, a practice that has been rampant and unchecked for far too long. By bringing state resources and legal scrutiny to bear on the management of Waqf properties, these amendments aim to dismantle the fortress of impunity that has surrounded Waqf Boards for decades.
While these changes are a welcome and necessary step toward correcting the glaring imbalance in the governance of religious institutions in India, they are only a beginning. For true equity and secularism to prevail, a broader reform must address systemic inconsistencies and entrenched biases across all religious communities. A uniform legal framework that applies consistent principles to the governance of all religious institutions, whether Hindu temples, waqfs, or churches, is essential. Such a framework would ensure that religious communities’ autonomy is respected while guaranteeing that the state’s involvement is just, non-discriminatory, and aligned with the constitutional principles of equality and secularism.
Conclusion
As India continues its journey as a secular democracy, the governance of its religious institutions must reflect the values of fairness, justice, and respect for all faiths. The ongoing debate over the Waqf Act and state control of temples provides an opportunity to rethink and realign these structures in a manner that upholds the true spirit of secularism—one that treats all religions with equal regard, without prejudice, and without allowing any community to dominate or exploit the system at the expense of others. The time has come to dismantle the systemic biases that have long plagued the governance of religious institutions in India and to establish a framework that ensures justice, transparency, and equality for all.
Author Brief Bio: Yashawardhana is a Research Fellow at India Foundation. He holds a degree in BA LLB (Hons) from Jindal Global Law School.
[1] Waqf Act 1995 (as amended by the Waqf (Amendment) Act 2013)
[2] ‘Proposed Changes to Waqf Law: What are the Controversial Amendments?’ The Indian Express (New Delhi, 5 August 2024) https://indianexpress.com/article/explained/explained-law/proposed-changes-to-waqf-law-9503596/ accessed 12 August 2024
[3] ibid
[4] Waqf Act 1995 (as amended by the Waqf (Amendment) Act 2013)
[5] ‘Proposed Changes to Waqf Law: What are the Controversial Amendments?’ The Indian Express (New Delhi, 5 August 2024) https://indianexpress.com/article/explained/explained-law/proposed-changes-to-waqf-law-9503596/ accessed 12 August 2024
[6] Places of Worship (Special Provisions) Act 1991
[7] Bengal Regulation XIX of 1810
[8] Religious Endowments Act 1863
[9] Mussalman Wakf Validating Act 1913
[10] ibid
[11] Waqf Act 1954
[12] Waqf Act 1995
[13] ibid
[14] ibid
[15] ‘Waqf Act,1995: A Tool given to Waqf Boards to Snatch the Property of Hindus ?’ (Times of India Blog, 26 September 2022) <https://timesofindia.indiatimes.com/blogs/myview/waqf-act1995-a-tool-given-to-waqf-boards-to-snatch-the-property-of-hindus/> accessed 20 August 2024
[16] Tamil Nadu Hindu Religious and Charitable Endowments (HR&CE) Act 1959
[17] ibid
[18] ibid
[19] ibid
[20] Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987
[21] Karnataka Hindu Religious Institutions and Charitable Endowments Act 1997
[22] Seshammal v. State of Tamil Nadu [1972] 2 SCR 920
[23] Article 14 of The Constitution of India
[24] Article 27 of The Constitution of India
[25] Article 14 of The Constitution of India
[26] Article 27 of the Constitution of India
[27] Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] 1 SCR 1005
[28] Article 25 of the Constitution of India
[29] S.P. Mittal v. Union of India [1983] 1 SCR 729
[30] Sri Venkataramana Devaru v. State of Mysore [1958] SCR 895
[31] Seshammal v. State of Tamil Nadu [1972] 2 SCR 920
[32] N. Adithayan v. Travancore Devaswom Board [2002] 8 SCC 106
