'Serious violation' of fundamental rights: Karnataka Board raises objections to Waqf Bill

New Delhi: The Karnataka State Board of Waqfs raised serious objections on a majority of the provisions of the Waqf (Amendment) Bill, 2024, including allowing Bohra and Aghakhani Muslims to set up separate boards, inclusion of non-Muslims in management and disallowing Muslims practising Islam for less than five years from donating their properties.

Sharing its views before the Joint Parliamentary Committee examining the contentious Bill, sources said quoting from the report adopted on Wednesday that the Board had argued that the amendments suggested by the government to the principal Act were against the Constitution and even violated fundamental rights.

At the outset, sources said the Board found fault with the move to change the nomenclature of the principal Waqf Act to ‘Unified Waqf Management, Empowerment, Efficiency and Development’ Act saying the term 'Waqf' has an “emotional binding” among Muslims and any change to its name is "not acceptable”.

It found the move to allow Bohra and Aghakhani Muslims to set up separate Waqf Boards in addition to existing ones under Sunni and Shia Muslims as it was “mischievous and divisive” in nature and runs contrary to the very objective of unifying the waqfs. It argued that the move would definitely open the “Pandora box and would be an open invitation to have more disputes and litigations”.

The Karnataka Board also flagged serious objections to the inclusion of non-Muslims in central and state Waqf Boards as well as the appointment of those who follow other faith as its Chief Executive Officer, sources said quoting the report.

While the panel highlighted in its report that it would bring diversity and inclusivity to Waqf Boards, the Karnataka Board felt that it goes directly against Article 16(5) of the Constitution that allows only a person professing a particular religion or denomination as an officer connected with its religious institutions or its governing body.

It said the amendment does not stand to reason since all other religious bodies of similar nature are represented by the respective members of their own religion and it takes away the basic right of franchise while arbitrarily introduces the nomination of members at the “whims and fancies” of the government.

Another concern raised by the Karnataka Board was related to dedication of Waqf only by a person practising Islam for at least five years. It argued that the amendment was a “serious violation” of fundamental rights as there can be no law prohibiting a person to deal with his own properties as he deems fit.

Warning that this provision is prone to misuse, the Karnataka Board was quoted as telling the JPC, “There cannot be any distinction between a born Muslim and a person who embraces Islam. A person owning a property has liberty to use the property as he likes. This amendment sought to put fetters to his religious freedom.”

The Karnataka Board was also opposed to the provision that said that no government property declared as Waqf would not be considered so. It claimed that the amendment is proposed with a "malafide intention and oblique motive" in order to deprive the Muslim community of the waqf properties under the guise of its being labelled as government properties.

It also had objections to the amendment that mandates a 'Waqf deed' for creating a waqf property saying the Muslim Law recognises creation of oral gift (hiba) and oral will (Wasiyath) among others and insistence of documentary proof as a pre-condition for registration of waqf would be contrary to Muslim Law. It recalled several Supreme Court judgements upholding the right of Muslim to create oral gifts or wills.

On the amendment bill putting conditions on who could be the caretaker of Waqf properties, the Karnataka Board said the insertion of new clauses is "unnecessary, unwarranted and unfounded in the eye of law", as it takes away the rights of the waqif to dedicate the property as a waqf and to administer it by nominating a person of his choice. This violates religious autonomy granted by the Constitution, it argued.

According to the amendment, a person shall not be qualified for being appointed, or for continuing as, a ‘mutawalli’ (caretaker), if he is less than 21 years of age, is found to be a person of unsound mind, is an undischarged insolvent, has been convicted of any offence and sentenced to imprisonment for not less than two years, has been held guilty of encroachment on any waqf property, has been on a previous occasion removed as a ‘mutawalli’ or removed by an order of a competent court or Tribunal from any position of trust either for mismanagement or for corruption.