The Waqf (Amendment) Bill 2024 was tabled in the Lok Sabha recently by the Union Minister of Minority Affairs. The Bill, proposes major changes to the Waqf Act 1995, by introducing sweeping changes in the governance and regulation of Waqfs in India. However, the Bill has been met with strong criticism from the opposition parties, who have held it as unconstitutional, divisive and anti-minority. The Bill has been referred to a Joint Committee of Parliament, for detailed deliberations.
What is a Waqf Property? What has been the governance structure for Waqf properties in India?
Waqf Property- A waqf, also known as ḥabs or mortmain property, is an inalienable charitable endowment established under Islamic law. It is a personal property given by Muslims for a specific purpose– religious, charitable, or for private purposes. The ownership of the property is implied to be with God. However, the beneficiaries of the property can be different.
Formation of Waqf- The Waqf can be formed through a deed, or Instrument, or even orally. A property can be deemed to be Waqf if it has been used for religious or charitable purposes for a long period of time. Once a property is declared as Waqf, its character changes forever, and cannot be reversed.
Governance Structure for Waqfs in India
Pre-colonial Governance- The Waqfs in India have been legally Governed in India since 1913. The Muslim Waqf Validating Act was enacted in 1913. This act was replaced by the Mussalman Wakf Act, 1923.
Post Independence- The Central Waqf Act, 1954 was enacted after independence to provide for the regulation of Waqfs. This act was ultimately replaced by the Waqf Act, 1995.
What are the Major Provisions and Institutional Structure as Provided by the Waqf Act?
| Survey commissioner | The Waqf Act provides for the appointment of a survey commissioner. The commissioner maintains a list of all Waqf properties by making local investigations, summoning witnesses, and requisitioning public documents. |
| Mutawalli (caretaker) | The Act provides for a Mutawalli (caretaker) who acts as a supervisor of the Waqf properties. |
| Management of Waqf Properties | Waqf properties are managed in a way that is similar to how properties under Trusts are managed under the Indian Trusts Act, 1882. |
Waqf Boards
| About | a. It is a body under the state government. It works as a custodian for Waqf properties across the state. b. In most states, there are separate Waqf Boards for the Shia and Sunni communities. Almost all prominent mosques in the country are Waqf properties and are under the Waqf Board of the state. |
| Composition | A Waqf Board is headed by a chairperson Members- a. One or two nominees from the state government b. Muslim legislators and parliamentarians c. Muslim members of the state Bar Council d. Recognized scholars of Islamic theology e. Mutawallis of Waqfs with an annual income of Rs 1 lakh and above. |
| Powers and Functions | a. Administration of the Waqf properties and taking measures for the recovery of lost properties of any Waqf b. Sanctioning any transfer of immovable property of a Waqf by way of sale, gift, mortgage, exchange, or lease. However, the sanction shall not be given unless at least two thirds of the members of the Waqf Board vote in favor of such a transaction. |
Central Waqf Council (CWC)
| About | The Central Waqf Council (CWC) was established in 1964, to supervise and advise state–level Waqf Boards across India. |
| Functions | a. Provide Guidance to the Central, state Governments, and Waqf boards on property management. b. It can require boards Waqf boards to provide information on their performance, including financial records and reports. |
Waqf Tribunal
| About | The Waqf Act provided for a Waqf tribunal to be constituted by the state governments to resolve disputes related to Waqf properties in India. According to the Section 6 of the Waqf Act 1995, the tribunal’s decision is taken as final in case of disputes regarding a property’s status as Waqf. |
| Composition | It comprises three members– a. Chairperson who is a state judicial officer not below the rank of a District, Sessions or Civil Judge, Class I. b. An officer from the state civil services. c. A person with knowledge of Muslim law and jurisprudence. |
2013 Amendment to Waqf Act 1995
a. Authority to Waqf Boards to designate a property as Waqf.
a. Prescribed imprisonment of up to two years for encroachment on Waqf property
b. Explicitly prohibit the sale, gift, exchange, mortgage, or transfer of Waqf property.
What key changes are introduced by the Waqf Amendment (Bill) 2024?
| Key Changes | Waqf Act 1995 | Waqf Amendment (Bill) 2024 |
| Name Change | The parent Act was named Waqf Act, 1995 | The new act will be called Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 |
| Registration | No provision for mandatory registration | Mandatory registration of Waqf properties with the District Collector’s Office for evaluation. |
| Creation of Waqf | No explicit provision | A new provision has been added, which provides that a person cannon create a Waqf unless he is the lawful owner of the property and competent to transfer or dedicate such property. |
| Recognition of Government properties as Waqf | No explicit provision | Government properties identified as Waqf properties before or after the act’s commencement will not be considered Waqf properties. |
| Dispute Resolution in case of recognition of Government land as Waqf | Waqf Tribunal | The District Collector will decide whether a property is Waqf or government land, with their decision being final. The collector will update revenue records and report to the state government. |
| Oral Recognition of Waqf | Oral recognition was admissible for consideration of a property as Waqf | Removes provisions to allow a property to be considered Waqf based on oral declarations. Properties without a valid waqfnama will be treated as suspect or disputed and will remain inactive until the District Collector makes a final decision. |
| Waqf by use | Provided for Waqf by use. This means that a property could be deemed to be a Waqf through use even if the original declaration is suspect. | Omits the provisions relating to “Waqf by use”. It makes a Waqf property suspect in the absence of a valid Waqfnama. |
| Appeal Mechanism | Waqf Tribunal’s decision was considered final. | Disputes with Waqf board decisions can now be appealed to high courts. |
| Audit of Waqfs | No provision of auditing | Central government will have the authority to order audits of Waqf properties by auditors appointed by the Comptroller and Auditor-General of India or designated officers. |
| Composition of Waqf Boards | No women and no non-Muslim members were allowed | Provides for the appointment of non-Muslim CEO and at least two non-Muslim members to the state Waqf Boards |
What is the rationale for the Key changes introduced as part of amendments to the Waqf Act 1995?
1. Address Concerns around Mismanagement and Corruption of Waqf Boards- There have been concerns regarding the lack of transparency in the operations of Waqf Boards, in financial and administrative operations. The proposed amendments are aimed at enhancing the operational transparency of Waqf Boards.
2. Reduction of property disputes- The government contends that the amendments will lead to reduction of extensive disputes over waqf property, by providing clear definitions and requiring mandatory verification of property claims.
3. Streamlining of Legal Disputes and Jurisdiction Issues- According to the Waqf Act, the Waqf Tribunal’s decision could not be appealed in civil courts. This led to perceptions of bias and injustice. The proposed amendments seek to streamline the jurisdictional issues in line with the principles of natural justice.
4. Women Representation- The proposed amendments which allow for women representation as members of Waqf Board is a step in the direction of Women empowerment.
What are the concerns surrounding the Waqf (Amendment) Bill 2024?
1. Violation of Religious Rights- Critics argue that the bill infringes upon the freedom of religion as provided by Article 25 and the autonomy of the Muslim community to manage their own religious affairs.
2. Increased Government Control- The proposed amendments grant greater powers to the government over Waqf properties, including the involvement of district collectors in property disputes. There are concerns that it can lead to bureaucratic delays and potential judicial-executive overreach.
3. Inclusion of Non-Muslims in Waqf Boards- Critics argue that the inclusion of non-muslims, undermines the integrity of these religious bodies. Non-muslim members may lack comprehensive understanding of the cultural and religious practices of Islam.
4. Potential for Increased Disputes- Removal of the waqf tribunal’s authority and the assignment of this role to district collectors, could lead to increased disputes over Waqf properties. Critics argue that this could complicate the resolution process and expose properties to further legal challenges.
5. Lack of Community Consultation- The bill has been criticized for being drafted without adequate consultation with the Muslim community and stakeholders. Many organizations, including the All India Muslim Personal Law Board, have voiced their concern that the bill was created without their input.
What Should be the Way Forward?
1. Adequate Deliberations in the JPC- The government must try to address the concerns around the contentious provisions in the Waqf amendment Bill.
2. Broader Consultation- The government should engage in extensive consultations with various stakeholders, including Muslim community leaders, legal experts, and civil society organizations.
3. Public Awareness Campaigns- Implementing public awareness campaigns about the Waqf system and the proposed changes can help dispel misconceptions and educate the community about their rights and responsibilities under the new framework.
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