Why a new Waqf law was needed to protect India’s Scheduled Tribes

Hundreds of thousands of acres of tribal land have been taken over by the Waqf Boards. The ABVKA presentation forcefully cited specific examples, which likely prompted the Modi government to incorporate provisions that would specifically protect the land of the Scheduled Tribe (ST) community across the country.

ABVKA told the JPC that, over time, the Waqf Act, 1995, had been misused to encroach upon land belonging to tribal communities. Recently, numerous cases have been reported regarding the abuse of power by Waqf Boards in tribal areas, which are especially protected under Schedule 5 and Schedule 6 of the Indian Constitution. Here are some of the instances cited in the ABVKA presentation:

(a) Church Properties in Ranchi, Jharkhand: In Jharkhand, a Fifth Schedule state with a significant tribal population, there have been controversies involving Christian institutions receiving notices about land disputes. These disputes often involve tribal land protections and claims from the Waqf Board. The legal framework in these areas makes such disputes complex, as land ownership transfers in Fifth Schedule areas require approval from tribal councils, and properties often get tied up in legal debates over ownership history.

(b) Andhra Pradesh Scheduled Areas (Agency Areas): In the tribal Agency Areas of Andhra Pradesh (formerly part of Telangana), there have been instances where Christian missionary institutions received notices concerning land ownership. These areas, governed under the Fifth Schedule, provide protections to tribal communities, and any claim or transfer of land has to navigate both local tribal laws and national laws. In a few cases, Waqf Boards have claimed that lands owned by churches historically belonged to Waqf properties, leading to legal disputes over the rightful ownership of land in scheduled areas.

(c) Odisha’s Tribal Areas (Koraput, Mayurbhanj): Odisha’s Fifth Schedule areas, such as Koraput and Mayurbhanj, have seen legal disputes over land rights, where both Waqf Boards and Christian institutions have received conflicting land claims. These disputes often arise from complex land records dating back to colonial or princely state periods. The protections offered to indigenous tribal land rights often come into conflict with claims made by external religious institutions.

(d) Chhattisgarh (Bastar Region): In Chhattisgarh’s Bastar region, where Fifth Schedule protections apply, land-related disputes have occurred where tribal communities have raised concerns about land ownership and conversions. The intersection of tribal land laws and religious property claims remains a sensitive issue in these regions.

In view of the growing amount of land acquired by the Waqf Board in the scheduled areas and the increasing number of litigations, there was an urgent need for genuine reforms in the existing Waqf Act. “The Waqf Act of 1995, in its current form, appears to disproportionately favour the Waqf Board, placing it above other laws,” the ABVKA told the JPC. It further elaborated by categorically stating, “It is noticed that thousands of properties in the Scheduled and Tribal Areas have been usurped in the name of mosques, churches, burial grounds, mazars, maqhbaras, and dargahs. In many cases, the Waqf Boards have notified them as Waqf properties.”

There have been numerous such cases in Carbianlong and Garo Hills in the Sixth Schedule in the North-East, as well as in Madhya Pradesh, Chhattisgarh, and Rajasthan in the Fifth Scheduled states.

This violated the protection given to Scheduled Tribes in respect of the lands comprising Scheduled and Tribal Areas. Such transfers were unlawful and in breach of the constitutional protections to the Scheduled Tribes. In fact, the ABVKA has argued that “the declaration of all properties declared in the past as Waqf within the Scheduled/Tribal Areas must be reviewed by the Collectors, and all such properties being used by non-tribals or for purposes such as mosques, churches, burial grounds, mazars, maqhbaras, and dargahs, in violation of the prohibition of land transfer under Schedule V of the Constitution, must be restored to the tribals.”

The growing number of cases where tribals were pitted against the Waqf Boards had drawn significant attention to the unchecked powers exercised by Waqf Boards in tribal areas, particularly regarding land claims that affected non-Muslim residents and tribals. However, these issues have never been a part of the mainstream public discourse. This issue has often been overlooked by most public intellectuals, the media, and even social media—just like many other issues related to tribals.

Even during the debate on the new proposed Waqf law in the run-up to its introduction in Parliament, there was hardly any significant debate on the plight of tribals.

However, ABVKA relentlessly pursued this and raised the issue with the JPC. In a well-articulated draft submitted to the JPC, it highlighted the problems and made several ST-specific suggestions in the proposed new Waqf Act. Several provisions have been made in the proposed new law to protect the interests of the tribal community.

Earlier RSSFACTS columns can be read here.