The Waqf Amendment Bill 2024

Context: The Joint Committee of Parliament reviewing the Waqf (Amendment) Bill has, according to sources, received a total of eight lakh petitions from both institutions and the public.

The Waqf (Amendment) Bill, 2024: 

• The Waqf (Amendment) Bill, 2024, introduced in the Lok Sabha, proposes significant amendments to the Waqf Act, 1995.
• The Act regulates waqf property in India, which refers to the endowment of movable or immovable property for religious or charitable purposes under Muslim law.
• The Bill aims to enhance management, transparency, and efficiency in the administration of waqf properties.

Renaming and scope:

• The Bill proposes renaming the Act to the ‘United Waqf Management, Empowerment, Efficiency and Development Act, 1995’.
• It will continue to regulate waqf properties but introduces new provisions for better governance and oversight.

Formation and management of Waqf: 

• Formation of Waqf
  • Original provisions: Waqf could be established through declaration, long-term use (waqf by user), or endowment when succession ends (waqf-alal-aulad).
• Amendment provisions:
  • Only individuals practicing Islam for at least five years may declare a waqf.
  • The individual must own the property being declared.
  • Removal of waqf by user.
  • Waqf-alal-aulad must not deny inheritance rights to heirs, including women.
• Government property as Waqf: 
  • The Bill states that government property identified as waqf will cease to be so.
  • The Collector will determine ownership in cases of uncertainty and update revenue records if deemed government property.

Powers and authority:

• Determination of Waqf property
  • Original act: Empowered Waqf Boards to determine if a property is waqf.
  • Amendment bill: Removes this provision; no longer will Waqf Boards have the authority to make such determinations.
• Survey of Waqf properties
  • Original act: Appointed a Survey Commissioner and additional commissioners.
  • Amendment bill: Empowers Collectors to conduct surveys of waqf properties, with pending surveys to be conducted under state revenue laws.
• Central Waqf council
  • Original Act: Constituted the Central Waqf Council with only Muslim members, including women.
  • Amendment Bill: Changes the composition:
    • Two members must be non-Muslims.
    • MPs, former judges, and eminent persons need not be Muslims.
    • Muslim members must include representatives of Muslim organizations, scholars in Islamic law, and chairpersons of Waqf Boards. Two must be women.
• Waqf Boards: 
  • Original act: Provided for the election of up to two members each from electoral colleges of MPs, MLAs, MLCs, and Bar Council members.
  • Amendment bill:
    • Empowers state governments to nominate one person from each group, who need not be Muslim.
    • Boards must include two non-Muslim members and at least one member each from Shias, Sunnis, and Backward classes of Muslims, as well as Bohra and Agakhani communities if relevant.
    • The original act provides that at least two members must be women.  The Bill states that two Muslim members must be women.
• Original Act: Allowed separate Waqf Boards for Sunni and Shia sects if they constituted more than 15% of waqf properties or waqf income in the state. 
• Amendment Bill: Extends this provision to include separate boards for Aghakhani and Bohra sects.

Tribunals and appeals:

• Composition of tribunals:
  • Original act: Required a Tribunal chairman to be a Judge of specified ranks and included a knowledgeable person in Muslim law.
  • Amendment bill:
    • Chairman must be a current or former District Court judge.
    • Other member to be a current or former officer of the rank of joint secretary.
• Appeals: 
  • Original act: Decisions of the Tribunal were final with no appeal options.
  • Amendment bill: Tribunal decisions can be appealed in the High Court within 90 days.

Powers of the Central government: 

• Original act: Allowed state governments to audit waqf accounts at any time.
• Amendment bill: Empowers the central government to oversee audits by the Comptroller and Auditor General (CAG) or a designated officer.

Rationale for the Amendment: 

• The amendment seeks to address concerns about the unchecked powers of Waqf Boards, which have led to extensive land claims and disputes.
• For instance, in September 2022, the Tamil Nadu Waqf Board claimed the entire Thiruchendurai village, predominantly Hindu, highlighting the need for more stringent regulations and transparency.

Objectives

• Transparency: Requires mandatory verification for all property claims by Waqf Boards to ensure transparency.
• Gender Diversity: Modifies the composition of Waqf Boards to include more women representatives.
• Revised verification procedures: Introduces new procedures for verifying Waqf properties to prevent misuse and disputes, with district magistrates overseeing these processes.
• Limited powers: Aims to curb the extensive powers of Waqf Boards to prevent misuse and ensure proper management of waqf properties.

Concerns raised about the proposed amendments:

• Reduced powers: The Bill diminishes the authority of State Waqf Boards, adversely impacting their ability to manage and oversee Waqf properties. This reduction in power undermines the effectiveness of these Boards in fulfilling their functions.
• Minority Rights: There are apprehensions that the Bill may negatively affect the interests of Muslim communities who rely on Waqf properties for religious and charitable purposes. The changes might harm the ability of these communities to manage their assets effectively.
• Increased government control: The increased involvement of district magistrates and other government officials in overseeing Waqf properties may lead to excessive bureaucratic interference. This heightened control could compromise the autonomy traditionally enjoyed by Waqf institutions.
• Potential encroachment: The Bill's provisions for government oversight in Waqf property management might be seen as an encroachment on religious autonomy. The role of district magistrates and other officials could be perceived as intruding into religious matters.
• Potential for disputes: The new verification processes, including the involvement of district magistrates, could lead to increased disputes and complications. The introduction of additional bureaucratic steps might exacerbate existing issues rather than resolving them.
• Changes to Family waqf regulations: The Bill's requirement that family waqfs (waqf-alal-aulad) be created only after fulfilling the rights of all heirs could hinder the creation of such waqfs. This contrasts with other legal frameworks that allow for similar arrangements.
• Derecognition of certain waqfs: The Bill attempts to derecognize waqfs that are categorized as ‘waqf by user’ or ‘waqf by reputation,’ potentially leading to legal and administrative challenges. This could create opportunities for unscrupulous individuals to exploit the situation.
• Abolition of the Office of Survey Commissioner of Waqf: The proposed replacement of the Survey Commissioner of Waqf with district collectors could lead to inefficiencies and complications. The collectors’ existing responsibilities may detract from their ability to manage Waqf property surveys effectively.
• Changes in Tribunal and appeals procedures : The Bill proposes changes to tribunal procedures, including an increase in the time allowed for raising objections. This could lead to delays and a rise in the number of cases, potentially complicating the resolution process.
• Composition and functioning of Waqf bodies: The Bill’s changes to the composition of the Central Waqf Council and State Waqf Boards, including the nomination of non-Muslims, could disrupt the existing balance and effectiveness of these bodies. The inclusion of local body members in the Waqf Boards might dilute their focus and expertise.
• Restrictions on non-Muslim donations: The Bill seeks to bar non-Muslims from donating to Waqf institutions, despite their potential support for various Muslim charitable causes. This provision conflicts with the inclusive nature of Islamic law and Indian syncretic culture.

Waqf Act 1955: 

Waqf Law:

• Waqf, literally meaning ‘detention’ or ‘confinement,’ refers to the permanent dedication of property for religious or charitable purposes in Islam.
• Once a property is designated as Waqf, its use is restricted solely to these purposes, and any other use or sale is prohibited.
• Under Sharia law, Waqf property remains dedicated to its purpose indefinitely.

History: 

• Delhi sultanate: 
  • The concept of Waqf in India dates back over 900 years to the early Delhi Sultanate. 
  • During this period, two villages were dedicated to the Jama Masjid of Multan and entrusted its administration to Shaikhul Islam.
  • The establishment of Waqf properties increased with the expansion of Islamic rule across India.
• Colonial period:
  • In the late 19th century, a legal challenge to Waqf properties arose when a dispute reached the Privy Council in London.
  • The council described Waqf as ‘a perpetuity of the worst and most pernicious kind’ and declared it invalid.
• This ruling was later overturned in India with the enactment of the Mussalman Waqf Validating Act of 1913, which preserved Waqf properties.
• Post-Independence:
  • The Waqf Act was first enacted by Parliament in 1954.
  • This Act was repealed and replaced by a new Waqf Act in 1995, which enhanced the powers of Waqf Boards.
  • In 2013, amendments were made to grant the Waqf Boards even greater authority to designate properties as Waqf.
• The Waqf Board of India is now the third-largest landholder in the country, following the Railways and the Defence Department.

Waqf Act, 1995:

• The Waqf Act, 1995, regulates the administration of Waqf properties.
• It defines Waqf as the permanent dedication of movable or immovable properties for religious, pious, or charitable purposes as recognized by Muslim law.
• These properties are endowed to benefit the needy and fund various institutions such as educational establishments, graveyards, mosques, and shelters.
• Once a property is designated as Waqf, it becomes non-transferable and remains dedicated as a charitable act toward God, essentially transferring ownership to the divine.

Management of properties:

• A Survey Commissioner is responsible for listing Waqf properties by conducting local investigations and reviewing public documents.
• Waqf properties are managed by a mutawali, who oversees their administration.
• Unlike trusts under the Indian Trusts Act of 1882, Waqfs are intended to be perpetual and dedicated to specific charitable or religious purposes.

Creation and ownership:

• To establish a Waqf, the individual (Waqif) must be of sound mind and hold valid ownership of the property
• Interestingly, the Waqif does not need to be Muslim, provided they believe in Islamic principles.

Waqf Board: 

• The Waqf Board is a legal body capable of acquiring, holding, and transferring property. It can also engage in legal proceedings.
• The board manages Waqf properties, recovers lost properties, and authorizes transactions involving immovable Waqf properties, requiring approval from at least two-thirds of its members.
• Established in 1964, the Central Waqf Council oversees and advises state-level Waqf Boards across India.

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