The Waqf (Amendment) Bill 2024: What You Need to Know | UPSC

Introduction

• • The Waqf (Amendment) Bill 2024 was recently introduced in the Lok Sabha by the Union Minister of Minority Affairs.
  • This bill proposes significant reforms to the Waqf Act of 1995, aiming to overhaul the governance and regulation of waqfs in India. However, it has faced severe criticism from opposition parties, who have labeled it as unconstitutional, divisive, and anti-minority. 
  • Consequently, the bill has been referred to a Joint Committee of Parliament for thorough deliberation and review.

Waqf Property

Definition: 

• • The Waqf Board is a statutory body established under the provisions of the Waqf Act, 1954 to manage and regulate Waqf properties in India. 
  • A waqf, also known as ḥabs or mortmain property, is an inalienable charitable endowment established under Islamic law.
  • It involves the dedication of personal property by Muslims for specific purposes, which can be religious, charitable, or private.
  • The ownership of the property is considered to be with God, although the beneficiaries may vary.

Formation:

• • A waqf can be established through a deed, instrument, or even orally.
  • A property used for religious or charitable purposes over a long period can be deemed waqf.
  • Once a property is declared as waqf, its status is irreversible.

Article 26 of Indian Constitution((Freedom to manage religious affairs) Article 26 The right to form and maintain institutions for religious and charitable intents.  The right to manage its own affairs in the matter of religion.  The right to acquire the immovable and movable property. The right to administer such property according to the law.

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Governance Structure for Waqfs in India

Pre-Colonial Governance:

• • Waqfs in India have been legally governed since 1913 with the enactment of the Muslim Waqf Validating Act.
  • This act was replaced by the Mussalman Wakf Act, 1923.

Post-Independence:

• • The Central Waqf Act, 1954, was enacted to regulate waqfs after independence.
  • This act was later replaced by the Waqf Act, 1995.

Major Provisions and Institutional Structure under 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 conducting local investigations, summoning witnesses, and requisitioning public documents.

Mutawalli (Caretaker):

• • The Act provides for a mutawalli, who acts as a supervisor of the waqf properties.
  • The mutawalli ensures the properties are managed according to the waqf deed.

Management of Waqf Properties:

• • Waqf properties are managed in a way similar to how properties under trusts are managed under the Indian Trusts Act, 1882.

Waqf Boards:

• • Waqf Boards are state-level bodies acting as custodians for waqf properties.
  • In most states, there are separate waqf boards for the Shia and Sunni communities.
  • A Waqf Board is headed by a chairperson and 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, and mutawallis of waqfs with an annual income of Rs 1 lakh and above.

Central Waqf Council (CWC):

• • The Central Waqf Council was established in 1964 to supervise and advise state-level waqf boards.
  • The CWC provides guidance on property management and performance.

Waqf Tribunal:

• • The Waqf Act provides for a waqf tribunal to resolve disputes related to waqf properties.
  • The tribunal comprises a chairperson who is a state judicial officer, an officer from the state civil services, and a person with knowledge of Muslim law and jurisprudence.

2013 Amendment to Waqf Act 1995:

• • The amendment gave authority to waqf boards to designate properties as waqf.
  • It prescribed imprisonment of up to two years for encroachment on waqf property.
  • The amendment explicitly prohibited the sale, gift, exchange, mortgage, or transfer of waqf property.

Key Changes Introduced by the Waqf Amendment (Bill) 2024

Name Change:

• • The parent Act was renamed from Waqf Act, 1995 to Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995.

Registration:

• • The amendment introduced mandatory registration of waqf properties with the District Collector’s Office for evaluation.

Creation of Waqf:

• • A new provision was added, ensuring that only lawful owners can create a waqf.

Recognition of Government Properties as Waqf:

• • Government properties identified as waqf before or after the act’s commencement will not be considered waqf properties.

Dispute Resolution:

• • The District Collector will decide whether a property is waqf or government land, with their decision being final.

Oral Recognition:

• • The amendment removed provisions allowing oral declarations of waqf; properties now require a valid waqfnama.

Waqf by Use:

• • The provisions relating to “waqf by use” were omitted, making a waqf property suspect in the absence of a valid waqfnama.

Appeal Mechanism:

• • Decisions by waqf boards can now be appealed to high courts.

Audit of Waqfs:

• • The central government will have the authority to order audits of waqf properties by auditors appointed by the Comptroller and Auditor-General of India.

Composition of Waqf Boards:

• • The amendment provides for the inclusion of a non-Muslim CEO and at least two non-Muslim members in the state waqf boards.

Rationale for Amendments with Examples

Addressing Mismanagement:

• • The amendments aim to increase transparency and reduce corruption within waqf boards. 
  • For example, the Karnataka State Waqf Board faced allegations of misappropriation of funds and unauthorized leasing of waqf properties. 
  • By implementing mandatory audits and stricter governance measures, such instances of financial mismanagement can be significantly reduced, ensuring that waqf properties are used for their intended charitable purposes.

Reducing Property Disputes:

• • Section 40 of the Waqf Act, 1995, gives Waqf boards the power to decide if a property is Waqf property. 
  • There are complaints this power has been misused by vested interests for property grab with the help of the corrupt Waqf bureaucracy.
  • The amendments provide clear definitions and require mandatory property verification to minimize disputes. 
  • For instance, the Delhi Waqf Board has dealt with numerous cases where properties were claimed as waqf without proper documentation, leading to prolonged legal battles.
  • With the new requirement for mandatory registration of waqf properties with the District Collector’s Office, these properties will be clearly documented, reducing the likelihood of disputes over ownership.

Streamlining Legal Disputes:

• • The appeal process is aligned with the principles of natural justice, allowing decisions to be appealed in high courts. 
  • For example, in Tamil Nadu, disputes over the classification of properties as waqf have often resulted in lengthy court cases, with waqf tribunals’ decisions being final and unappealable. 
  • Allowing these decisions to be appealed in high courts ensures a fairer legal process, giving parties a higher judicial authority to review and potentially overturn biased or unjust tribunal decisions.

Women Representation:

• • The inclusion of women in waqf boards promotes gender equality and empowerment. 
  • For example, the Maharashtra State Waqf Board included female members who have played crucial roles in advocating for women’s education and healthcare initiatives within the Muslim community. 
  • Their participation has led to more comprehensive welfare programs that address the needs of women, illustrating the positive impact of gender-diverse boards on community development.

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Concerns Surrounding the Waqf (Amendment) Bill 2024

Violation of Religious Rights:

• • Critics argue that the bill infringes on the autonomy of the Muslim community and their freedom to manage religious affairs.

Increased Government Control:

• • The amendments grant greater powers to the government over waqf properties, leading to concerns about bureaucratic delays and executive overreach.

Inclusion of Non-Muslims:

• • Critics believe that including non-Muslims in waqf boards undermines the integrity of these religious bodies, as non-Muslim members may lack an understanding of Islamic practices.

Potential for Increased Disputes:

• • The removal of the waqf tribunal’s authority and the assignment of this role to district collectors could complicate the resolution process and lead to more legal challenges.

Lack of Community Consultation:

• • The bill has been criticized for being drafted without adequate consultation with the Muslim community and stakeholders.

Important Judgments Related to Waqf Board and Waqf Act

Bishan Das v. State of Punjab (1961):

• • Summary: The Supreme Court held that once a property is declared as waqf, its status cannot be changed, and it must be used only for the purposes specified in the waqf deed.
  • Significance: This judgment reinforced the inalienability of waqf properties and their perpetual dedication to religious or charitable purposes.

Board of Muslim Wakfs, Rajasthan v. Radha Kishan (1979):

• • Summary: The Supreme Court clarified that civil courts have jurisdiction over waqf property disputes unless explicitly barred by statute.
  • Significance: The judgment emphasized the role of civil courts in adjudicating waqf disputes, ensuring legal recourse for aggrieved parties.

Syed Mahaboob Shahabuddin v. Mysore State Board of Wakfs (1969):

• • Summary: The Supreme Court ruled that waqf properties are to be managed by mutawallis, and any mismanagement can lead to their removal by the Waqf Board.
  • Significance: This judgment highlighted the accountability of mutawallis and the supervisory role of the Waqf Board.

Mohammad Khasim v. T.N. Wakf Board (2005):

• • Summary: The Madras High Court held that the Waqf Tribunal has exclusive jurisdiction to resolve disputes related to the waqf properties and that civil courts should refrain from interfering in such matters.
  • Significance: The judgment reinforced the authority of the Waqf Tribunal in handling waqf-related disputes, streamlining the resolution process.

J&K Wakf Board v. Ghulam Nabi Wani (2020):

• • Summary: The Jammu and Kashmir High Court held that the Waqf Board has the authority to evict unauthorized occupants from waqf properties.
  • Significance: This judgment empowered the Waqf Board to take action against encroachments and unauthorized use of waqf properties, ensuring their proper management and utilization.

Aliyathammuda Beethathebiyyappura Pookoya Haji v. Pattakkal Cheriyakoya (1990):

• • Summary: The Supreme Court ruled that the Waqf Act does not prevent the High Court from exercising its jurisdiction under Article 226 of the Constitution in waqf matters.
  • Significance: This judgment affirmed the High Court’s power to issue writs in waqf cases, providing an additional layer of judicial oversight.

Rajasthan State Board of Muslim Wakfs v. Abdul Ghafoor (1999):

• • Summary: The Supreme Court held that the Waqf Board has the power to manage waqf properties directly if the mutawalli fails to perform their duties.
  • Significance: This judgment strengthened the Waqf Board’s authority to intervene in the management of waqf properties, ensuring their proper administration.

Way Forward

Adequate Deliberations:

• • The government should address concerns around the contentious provisions in the Waqf Amendment Bill through the Joint Parliamentary Committee.

Broader Consultation:

• • Extensive consultations with Muslim community leaders, legal experts, and civil society organizations should be conducted to ensure a comprehensive approach.

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.