Does the Waqf Board Have Unlimited Power? | The Truth About Section 40 of the Waqf Act, 1995

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Introduction

Welcome to our myth-busting series! Today, let’s dive into a topic that stirs up a lot of conversation: the authority of Waqf Boards under Section 40 of the Waqf Act, 1995. Section 40 is one of the most debated and controversial parts of the Act. Some groups, particularly right-wing factions, argue that this section gives Waqf Boards the unchecked power to declare almost any property in India as Waqf land. But is that really the case? Let’s dissect this claim with evidence and context.

The Legal Framework

Let’s start by talking about Section 40 of the Waqf Act. This section gives Waqf Boards the authority to determine if a property qualifies as Waqf. Critics argue that this provision allows for arbitrary claims, but here’s what’s really important to understand:

First, the board can’t just declare any property as Waqf without a proper inquiry. If they have evidence to believe a property is Waqf, the board is required to conduct a thorough investigation through the Survey Commissioner. This includes gathering relevant documents, hearing from stakeholders, and reviewing the property’s historical and legal records. And this whole process is open to scrutiny, as Sections 5 and 6 of the Act make clear. On top of that, almost all members of Waqf Boards and the Survey Commissioner are appointed by the government, giving the government a level of control.

Second, the decisions made by the Waqf Board are not final. Under Section 83 of the Act, there’s a tribunal, meaning a special court, where these decisions can be challenged. So, if someone believes the decision is unfair, they have a way to contest it.

And third, Waqf Boards must follow principles of natural justice. This means they can’t make decisions without giving the affected parties a chance to be heard and represent themselves.

So, while Section 40 does empower Waqf Boards to determine whether a property is Waqf, it is also complemented by Sections 4, 5, 6, and 83, which provide essential checks and balances to promote fairness and transparency. Now, let’s take a look at whether similar powers are given to Hindu Endowment Boards.

Similar Power to Hindu Endowment Boards

Unlike the Waqf system, which is governed by the central Waqf Act, 1995, there’s no uniform central law for Hindu endowments. Each state has its own laws, and Hindu Endowment Boards are responsible for determining the status of religious endowment properties. This means the process for determining whether a property qualifies as a religious endowment is generally less formal compared to the Waqf Act.

Closing Remarks

Looking at all the evidence we’ve covered, it’s clear that Muslim Waqf Boards do not have arbitrary power to decide whether a property is Waqf. They can’t just declare any property as Waqf without going through a formal process. And here’s a critical point: In a country where Muslims face systemic exclusion and lack social and political power, do you really think Muslims would have unchecked power to decide if a property is Waqf? If that were the case, lands like Babri Masjid and others would’ve stayed with the Muslim community.

Now, the omission of Section 40 is a move that many believe is driven by political interests, potentially pushing the Muslim community further to the margins. In our next myth-busting video, we’ll dive deeper into the implications of this omission and why it poses significant challenges. So, stay tuned!