Decoding the legal footing of Waqf (Amendment) Bill

The contentious Waqf (Amendment) Bill of 2024 will soon become a law in force and, in the near future, a law in action.

- Tahir Mahmood

The contentious Waqf (Amendment) Bill of 2024 will soon become a law in force and, in the near future, a law in action. Sidestepping the political overtones of the Bill and of the ongoing debates on it, I have looked into it only from legal angles. The pros and cons of the Bill are to be examined in the light of the relevant provisions of the Constitution and the law which determines the scope and extent of Muslim law in the country.

The Arabic-Urdu word Wakf generally refers to what are known in English as religious and charitable endowments. So, where do we find Wakfs in the federal structure of the Constitution and distribution of legislative powers between the Centre and the states? This is to be determined with reference to Article 246 and the Seventh Schedule of the Constitution. The Union List in the Schedule which enumerates the subjects on which, according to the said Article, "Parliament has exclusive power to make laws" does not include religious and charitable endowments.

Nor does the State List, on the subjects under which state legislatures alone can make laws, speak of them. These are mentioned in Entry 28 of the Concurrent List on the subjects mentioned in which both the central and state legislatures can make laws. Burial and cremation grounds, which too are religious institutions, are however included in the State List.