Waqf (Amendment) Bill, 2024

The Waqf (Amendment) Bill, 2024, aims to amend the Waqf Act of 1995 and has been referred to a Joint Committee of Parliament (JCP) amidst criticism from opposition parties who label it as “unconstitutional,” “anti-minority,” and “divisive.”

Understanding Waqf

Waqf refers to a property dedicated to God for religious and charitable purposes, enabling Muslims to extend their charitable deeds beyond their lifetime. The Waqf Board in India is a significant landholder, following the Railways and Defence Department.

• Inclusivity: Non-Muslims can also establish a waqf if it aligns with Islamic principles.
• Historical Context: During Muslim rule, waqf administration was decentralized, managed by various officials and departments dedicated to religious endowments.
• Establishment: A waqf can be created through a formal deed, orally, or through long-term use for religious or charitable purposes. Once established, the property cannot be reversed or transferred through inheritance or sale.

Types of Waqf

• Waqf Al-Khairi (Charitable Waqf): Benefits the broader Muslim community (e.g., schools, hospitals, mosques).
• Waqf Al-Ahli (Family Waqf): Initially benefits the founder’s family, later shifting to charitable purposes.

Legal Framework Governing Waqf in India

• Historical Legislation:
• The Mussalman Waqf Validating Act, 1913: Initially addressed family waqfs without retrospective effect.
• The Mussalman Wakf Validating Act, 1930: Granted retrospective validity to family waqfs across India.
• Waqf Act, 1954: The first major legislation post-independence.
• Waqf Act, 1995: Replaced the 1954 Act, granting more powers to waqf boards and addressing issues of property encroachment and illegal leases.

Key Provisions of the Waqf Act, 1995

• Survey Commissioner: Appointed to maintain a list of all waqf properties through investigations and public documentation.
• Property Recording: Once identified, waqf properties are recorded in the State's official gazette.
• Management: Each waqf is managed by a mutawalli (custodian), akin to trust management under the Indian Trusts Act, 1882.
• Waqf Tribunal: Disputes are resolved by a Waqf Tribunal comprising a chairperson (judicial officer), a state civil services officer, and a Muslim law expert.
• Waqf Boards: The Act provides for the constitution of Waqf Boards, Councils, and Chief Executive Officers.

Recent Developments and Concerns

The proposed amendments have sparked significant debate over their implications for minority rights and the administrative structure of waqf properties. Critics argue that the amendments may undermine the protections for waqf properties and disproportionately affect minority communities.

Waqf Boards

Role: Waqf Boards are established in each state to oversee the administration of waqf properties. Most prominent mosques in India are categorized as waqf properties and fall under the jurisdiction of these boards. In many states, there are separate Waqf Boards for Shia and Sunni communities.

Composition

• Chairperson: Each Waqf Board is headed by a chairperson.
• Members: The board typically includes:
• One or two nominees from the state government.
• Muslim legislators and parliamentarians.
• Muslim members of the state Bar Council.
• Recognized scholars of Islamic theology.
• Mutawallis of waqfs with an annual income of ₹1 lakh and above.
• Chief Executive Officer (CEO): Each board must appoint a full-time CEO, who must be a Muslim and at least of Deputy Secretary rank in the state government.

Functions

• Management: Responsible for the management of waqf properties and the recovery of lost assets.
• Property Transfers: Can sanction the transfer of immovable waqf property (through sale, gift, mortgage, exchange, or lease) with the approval of at least two-thirds of the board members.

Central Waqf Council

Role: The Central Waqf Council serves as a national advisory body under the Ministry of Minority Affairs, ensuring uniform administration of waqf properties across India.

Composition

• Chairperson: Headed by the Union Minister of Minority Affairs.
• Members: Other members are appointed by the government, comprising all Muslims, with at least two women included.

Functions

• Advisory Role: Provides advice to the Union government on waqf-related issues.
• Policy Development: Involves in the formulation and implementation of policies related to waqf laws.
• Dispute Resolution: Assists in resolving inter-state disputes regarding waqf properties.

The Waqf (Amendment) Bill, 2024 aims to significantly reform the governance and management of Waqf properties in India, amending the existing 1995 Waqf Act.

Objectives

• Enhanced Efficiency: To address shortcomings in the current Waqf management system and improve the administration of Waqf properties.
• Rename the Act: It will be renamed to the “United Waqf Management, Empowerment, Efficiency and Development Act, 1995.”

Key Amendments

• Formation of Waqf: Only lawful property owners who have practiced Islam for at least five years can create Waqf properties through formal deeds, abolishing the previous "waqf by use" concept. Beneficiaries will now include widows, divorced women, and orphans.
• Government Property: Any government property declared as Waqf property before or after the enactment will cease to be classified as such.
• District Collector's Authority: District collectors will determine if a property is Waqf or government property, with the requirement to update revenue records and report to the state government.
• Survey of Waqf Properties: Responsibility for surveying Waqf properties shifts to district collectors or equivalent officers, as per state revenue laws.
• Centralized Registration System: A new system will be established to upload all Waqf property information within six months, with future registrations submitted exclusively through this portal.
• Inclusion of Non-Muslim Members:
• Central Waqf Council will have two non-Muslim members, alongside Muslim representatives, with specific inclusion of women.
• State Waqf Boards must include two non-Muslims and two women members.
• Waqf Tribunals: The composition is reduced to two members (a district judge and a joint secretary officer), with a mandate to resolve disputes within six months, extendable by six months.
• Judicial Review: Parties can appeal Waqf tribunal decisions directly to the High Court within 90 days, a shift from the previous prohibition against such appeals.
• Powers of the Central Government: Central authorities will have the power to set rules for registration, auditing, and publicizing Waqf accounts.
• Separate Waqf Boards: Separate boards can be established for different sects if certain thresholds of Waqf properties or income are met.
• Annual Contribution: The annual contribution to the Waqf Board from mutawallis (managers of waqf properties) has been reduced from 7% to 5% for those with a net annual income of at least ₹5,000.

Criticism of the Waqf (Amendment) Bill, 2024

• Undermining Autonomy: The Bill is criticized for diminishing the autonomy of Waqf Boards by shifting authority to the central government. This increased intervention may lead to inefficiencies and a lack of accountability at the local level.
• Infringement on Religious Rights: Critics argue that the Bill infringes upon the right to freedom of religion as guaranteed by Article 25 of the Constitution. The historical rights associated with Waqf properties cannot be revoked without a fair judicial process.
• Procedural Concerns: The introduction of the Bill faced criticism for lacking adequate consultation with stakeholders, including minority community representatives, civil society organizations, and legal experts. This raises concerns about the inclusivity and fairness of the legislative process.
• Reduced Local Control: By centralizing power, the Bill risks ignoring the specific needs and priorities of local communities. This could lead to resistance from local boards and community leaders, who may feel disconnected from decision-making processes.
• Increased Bureaucratic Interference: The shift towards more bureaucratic oversight may slow down decision-making processes and add administrative burdens for Waqf Boards, potentially hampering effective management.

Potential Benefits

• Streamlined Administration: The Bill aims to enhance transparency and accountability in Waqf property management through rigorous oversight mechanisms, which could help prevent misuse and ensure effective utilization.
• Revenue Generation: Improved management of Waqf assets could lead to better utilization and increased revenues, which could then be reinvested into community charitable and religious initiatives.
• Legal Clarity: The Bill addresses ambiguities in existing laws regarding Waqf properties, potentially reducing disputes and litigation.
• Improved Dispute Resolution: Enhanced mechanisms for resolving conflicts related to Waqf properties could lead to quicker resolutions, benefiting both Waqf Boards and the communities they serve.

Conclusion

While the amendments proposed in the Waqf (Amendment) Bill, 2024 aim to promote social justice and gender equity—especially through the inclusion of women and marginalized groups—they also raise significant concerns. It is essential to ensure that the voices of all stakeholders are considered, and measures are implemented to protect the integrity of Waqf properties while enhancing transparency and accountability in their management. Balancing government oversight with local autonomy will be crucial for the Bill's successful implementation