Waqf (Amendment) Bill

Waqf (Amendment) Bill, 2024 Overview

Background: The Waqf (Amendment) Bill, 2024, which aims to reform the governance of Waqf properties, has been referred to a Joint Parliamentary Committee following opposition protests.

Definition of Waqf Property

• Waqf: This refers to a donation of personal property by Muslims for religious, charitable, or private purposes, with ownership considered to belong to God.
• Establishment: A Waqf can be set up through a written or spoken agreement, or when a property has been consistently used for religious or charitable purposes.
• Irrevocable Status: Once a property is declared Waqf, its status is permanent and cannot be reversed.

Governance of Waqf

• Current Regulation: The Waqf Act, 1995, which replaced the Central Waqf Act, 1954, governs Waqf properties.
• Provisions: This Act includes guidelines for the formation and appointment of Waqf Boards, Waqf Councils, and Chief Executive Officers at the state level.
• Central Waqf Council (CWC): Established as a statutory body in 1964, the CWC supervises and advises state-level Waqf Boards.
• 2013 Amendment Highlights:
  • Empowered Waqf Boards to designate properties as Waqf.
  • Imposed up to two years of imprisonment for encroachment on Waqf property.
  • Prohibited the sale, gift, exchange, mortgage, or transfer of Waqf property.

Management and Oversight

• Administration: Waqf properties are managed by a mutawalli (caretaker) and overseen by a survey commissioner responsible for maintaining a list of all Waqf properties.
• Dispute Resolution: A Waqf Tribunal, established by the state government, resolves disputes regarding Waqf properties.
  • Tribunal Composition:
    1. Chairperson: A state judicial officer with a rank of at least District Judge, Sessions Judge, or Civil Judge, Class I.
    2. An officer from the State Civil Services.
    3. An expert in Muslim law and jurisprudence.

Functions of Waqf Boards

• Role: Waqf Boards act as custodians of Waqf properties within their states.
• Composition: Led by a chairperson, these boards include state government nominees, Muslim legislators and parliamentarians, Muslim members of the state Bar Council, Islamic scholars, and mutawallis of Waqfs with an annual income of Rs 1 lakh or more.
• Authority: Waqf Boards can recover lost properties and approve the transfer of immovable Waqf property (e.g., sale, gift, or lease), with approval from at least two-thirds of the Board members.

Proposed Amendments to the Waqf Act

• Renaming: The Bill proposes renaming the Waqf Act, 1995, to the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995.
• New Provisions:
  • Section 3A: Waqf cannot be created unless the property owner is lawful and competent to transfer or dedicate it.
  • Section 3C (1): Government property, whether identified as Waqf before or after the Act, will not be classified as Waqf property.
  • Section 3C (2): The Collector, not the Waqf Tribunal, will determine if a disputed property is government land; Waqf cannot control the land until the government decides.
• Audit Authority: The central government can order audits of any Waqf at any time by an auditor appointed by the Comptroller and Auditor-General or another designated officer.
• Elimination of “Waqf by use”: A valid Waqfnama (formal document) is required for a property to be recognized as Waqf.
• Waqf Board Composition Changes: The Bill proposes allowing a non-Muslim CEO and requiring at least two non-Muslim members on state Waqf Boards.

Need for the Waqf (Amendment) Bill, 2024

• Transparency: The Bill aims to enhance transparency in Waqf Board operations to address corruption concerns.
• Efficiency and Revenue: Improvements in infrastructure, documentation, and a centralized database could significantly boost revenue, potentially increasing annual income from Rs 163 crore to Rs 12,000 crore for 4.9 lakh Waqf properties, as reported by the Sachar Committee.
• Encroachment Prevention: Stricter regulations to combat encroachment and illegal transfers of Waqf properties.
• Justice Improvement: Amendments aim to simplify the tribunal system, reduce case backlogs, and enhance audit and financial accountability.
• Inclusiveness Promotion: The Bill addresses inheritance rights issues for women and orphans and introduces women’s representation on Waqf Boards, addressing the misuse of the ‘Waqf-al-Aulad’ provision.
• Dispute Reduction: Clearer definitions and mandatory property verification aim to reduce disputes over Waqf land.

Controversies Surrounding the Waqf (Amendment) Bill, 2024

• Constitutional Concerns:
  • Seen as infringing on religious freedoms and the autonomy of Muslim institutions, as guaranteed by Articles 25 and 26.
  • Violates Article 14 (equality before the law) and encroaches on state jurisdiction over land, undermining federalism.
• Excessive Government Control: The Bill is perceived to disrupt liberalization and historical rights by increasing government control over Waqf properties.
• Community Division Risks: The removal of the “Waqf by use” concept and increased bureaucratic control could lead to community disputes and conflicts over historical mosques.
• Insufficient Community Input: Criticism for a lack of adequate consultation with the Muslim community and stakeholders.

Way Forward

• Constitutional Compliance: Review and revise the Bill to align with constitutional provisions, particularly Articles 25, 26, and 14, to respect religious freedoms and state jurisdiction.
• Autonomy Preservation: Ensure Waqf institutions are managed by representatives knowledgeable in Islamic practices while balancing government oversight and religious self-management.
• Adverse Possession Protection: Safeguard Waqf properties from misuse of adverse possession laws through clear protections.
• Community Engagement: Engage with the Muslim community and stakeholders, such as the All-India Muslim Personal Law Board, to incorporate their feedback.
• Dispute Resolution Streamlining: Reevaluate the roles of district collectors and Waqf Tribunals to ensure efficient and impartial dispute resolution.
• Inclusivity and Representation: Create guidelines for including non-Muslims in Waqf Boards that respect the institutions’ religious nature while ensuring fair representation.
• Legislative Review: Regularly review and adjust the Waqf Act to address emerging issues and uphold constitutional values.