The article is authored by Mr. Ansh Priy Srivastava, a second-year law student at Chanakya National Law University.
The Waqf (Amendment) Bill, 2024: Balancing Reforms and Community Rights
Since the past few weeks, the significance of Waqf as a concept as well as its application and implication on the society has gained utmost importance. People from various and diverse backgrounds are giving comments and their views on Waqf and seeing it as a concept which is endangering the property rights associated with a particular land without being conversant with the concept of Waqf, therefore it becomes essential to understand what constitutes as a Waqf. They are referred to in Islamic law as properties given for religious or charitable purposes, and can neither be used for any other purpose nor transferred. Waqf is the act by which the ownership of the property is detained and transmitted through Allah, removing it therefore from the person creating the Waqf. A “waqif” is an individual who establishes a waqf for the beneficiary. Due to the absence of a physically tangible entity, the Waqif appoints a ‘mutawalli’ or any other authority competent to administrate a Waqf, as properties coming under the title of Waqf are bestowed upon Allah.
Now in the present times, The Central Government has introduced The Waqf (Amendment) Bill, 2024 that promises certain fruitful reforms in order to increase transparency, accountability and also mandates for government oversight in the management of Waqf property. To simplify the operations of the Waqf Board which oversees the Waqf property and guarantee the effective administration of Waqf assets, two bills were introduced in the Lok Sabha on August 8, 2024: the Waqf (Amendment) Bill, 2024 and the Mussalman Wakf (Repeal) Bill, 2024[1].
The purpose of the Waqf (Amendment) Bill, 2024, is to modify the Waqf Act, 1995, to address the problems and challenges associated with the regulation and management of Waqf holdings. The Amendment Bill aims to enhance the administration and management of waqf properties in India. The objective is to address the deficiencies of the prior legislation and augment the efficacy of Waqf boards by implementing modifications, including renaming the Act, revising the definitions of waqf, refining the registration procedure, and amplifying the utilisation of technology in the management of waqf records.
The Mussalman Wakf (Repeal) Bill, 2024 primarily intends to repeal the archaic law of the Mussalman Wakf Act of 1923, which was enacted during the colonial period and has now become outdated and incapable of offering sound administration of the waqf lands in present-day India.
Repealing the Act will bring uniformity, transparency, and accountability in the administration and management of the waqf properties under the Waqf Act of 1995, thereby eliminating inconsistencies and obscurities resulting from the continuance of this archaic legislation.
Evolution of Waqf Law
The evolution of Waqf in India can be traced back to the early period of the Delhi Sultanate when Sultan Muizuddin Sam Ghaor disposed of two villages to the Jama Masjid of Multan and entrusted its management to Shaikhul Islam. With the success of the Delhi Sultanate and subsequent Islamic regimes in India, the amount of Waqf properties grew[2].
In the late 19th Century, a case calling for the scrapping of Waqfs in India surfaced when an appeal regarding a dispute about a Waqf property was taken to the Privy Council of London during the British Raj. The four British justices who ruled the case, termed the Waqf as “a perpetuity of the worst and most pernicious nature” and labeled it unconstitutional. However, the verdict by the four judges was overruled in India, and the Mussalman Waqf Validating Act of 1913 retained the system of Waqf in the country. Since then, no acts have been made to restrict Waqfs.
Key Amendments to the Waqf Act
The oral declaration by anybody shall be set aside in Waqf status. The properties without a waqfnama would be spurious or disputable and lees until the District Collector decides. Appeals are now permitted in the high courts to decisions of the Waqf Board. It can be ordered by Central government. To do so, the Comptroller and Auditor-General (CAG) of India or his other subordinates designated to perform such audits will conduct them. Reforms also call for greater representativeness and inclusiveness on the Central Waqf Council and in the state boards for women and non-Muslim representation.
Earlier a waqif, who dedicated property for reasons that were pious, religious, or charitable, wass obligated to notify ‘auqaf’ under the 1995 Waqf Act; the UPA amendments of 2013 have given greater powers to the Waqf Boards, which has been challenged.
As already stated, the bill emphasizes on the authority of the government to keep oversight on the Waqf property. The bill declares, “any government property identified or declared as Waqf property, whether prior to or subsequent to the commencement of this Act, shall not be considered a waqf property.” The district collector would be the arbitrator in this case. He would decide if the property was either a waqf property or government land. His word would be the final word.
Rationale Surrounding these Amendments
The Ministry had received a number of representations and grievances from both Muslim and non-Muslims regarding the intentional invasion of waqf land and the mismanagement of waqf properties. The ministry found that mainly 148 complaints raised since April 2023 were about encroachments, unlawful transfers of waqf land, survey and registration delays, and complaints against the Waqf Boards and Mutawallis[3].
The financial and administrative operations of Waqf Boards have been the subject of concern due to the absence of transparency. The proposed amendments are designed to improve the operational transparency of Waqf Boards.
The government argues that the amendments will result in a decrease in the number of extensive disputes over waqf property by mandating the verification of property claims and providing clear definitions.
The Waqf Act barred the appeal of decisions made by the Waqf Tribunal in civil courts. This created an impression of partiality and injustice. The amendments are to further simplify jurisdictional problems in terms of principles of natural justice.
The proposed amendments that allow women to be members of the Waqf Board would be a giant leap towards empowering women.
The Way Forward
The Waqf (Amendment) Bill, 2024 was referred to the Joint Committee of Parliament. It will be surely interesting to determine the future of this bill in the coming days. As far as the next steps regarding the bill are concerned, they must be in conformity with the ideals of the Constitution and must not infringe upon the civil and public rights of the individuals and should uphold the principles of justice and secularism. As nothing is inherently perfect in itself, it is the necessary duty of the government to address certain controversial amendments of the bill and should engage widely with stakeholders from the Muslim community, legal experts, and other civil society organizations.
Public education campaigns on the Waqf system and the proposed amendments to the rule are likely to change the perception and understanding of the people and the community with respect to the rights and obligations involved under the new scheme.
[1] Waqf Act Amendments: Tighter control, more women and non-Muslims members, five key changes to Waqf law – The Economic Times (indiatimes.com) (last accessed on 27 September. 2024).
[2] Understanding the Origin and History of Waqf in India and Its Recent Amendment | by OM PRAKASH | Aug, 2024 | Medium(last accessed on 27 September. 2024).
[3] https://static.pib.gov.in/WriteReadData/specificdocs/documents/2024/sep/doc2024913394001.pdf(last accessed on 27 September. 2024).