INTRODUCTION
In India, people are deeply connected with their religion and its rituals. Religion has the power to unite a large number of people either for celebrating a particular festival or if anyway, people think that their religious autonomy is diminishing. Recently one such incident has created upheaval in society. The ruling dispensation has tabled a bill in Lok Sabha on 8th August 2024 to amend the Waqf Act, of 1995, the bill got numerous objections from particular religious groups and the organizations that work for them. As per the government, the purpose of the amendment is to improve the administration and management of the waqf properties of India. The bill also aims to overcome the shortcomings of the previous governing acts of Waqf and enhance its efficiency by introducing certain changes in the 1995 Act.
BODY
Before delving into the topic of the changes and their significance we should have an idea about Waqf.
What is Waqf
Under Islamic Jurisprudence when a person dedicates his property in perpetuity to religious and charitable endowments that is known as Waqf. The person who executes his property is known as Waqif. In Waqf, the property is mainly given in the name of Allah so there is no scope to take back the property or use it for any personal purposes. Waqif appoints a person called Mutawali to manage and administer the property in the absence of Waqif.
Creation of Waqf
There are four ways through which Waqf can be created-
- When waqf is established during the lifetime of Waqif that is known as Waqf created by an act of Inter-vivos.
- When Waqif established Waqf during his lifetime. But it takes effect after the death of Waqif which is known as Testamentary Waqf. Through this method, a person cannot give more than one-third of his without the consent of his legal heirs.
- Waqf created during the death illness of Waqif is known as Marz-Ul-Maut.
- When a place is being used for a long period constantly for waqf purposes that case Waqf may be established by the immemorial use.
Statutory Laws for Governing Waqf Properties in India
The Waqf Act, 1954
In Independent India, this act is the first comprehensive legislation regarding the administration of Waqf properties. Through this act, central and state Waqf boards were created. A statutory body named The Central Waqf Council was established in 1964. This body was established to oversee the work under various State Waqf boards. The act also created provisions for allocating funds for the conservation and development of Waqf properties.
The Waqf Act, 1995
This act established Waqf boards that were responsible for administering the Waqf properties and ensuring that properties were being used for the intended purpose. The act added a provision for appointing Mutawali to manage the property. Waqf tribunals were established to resolve any disputes regarding Waqf properties. The act also prescribed punishment in the form of imprisonment for up to two years in case there is any encroachment and misuse of the Waqf property.
The Waqf Act, of 1995 was amended in 2013. It granted extensive powers to the Waqf board to designate any property as Waqf Property. In this amendment, the word ‘Wakf’ is also substituted with ‘Waqf’.
The Waqf Amendment Bill,2024
This bill has introduced 44 Amendments to the 1995 Waqf Act. Those are-
- The act has been renamed the Waqf Act “Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995”.
- The act also emphasizes that the Waqf property should be registered in the District Collectors office mandatorily.
- A provision has been added that a person cannot bequeathed his property as Waqf property unless he is the real owner of the property and the person should also practice Islam for not less than five years.
- Before or after the commencement of this act any government property is marked as Waqf Property. The property will cease to exist as Waqf Property.
- In case any dispute arises regarding the identity of the property that means whether it is a Waqf Property or a Government land the power to take the final call on this matter is given to the District Collector where earlier it used to decide by the Waqf Tribunal.
- The new amendment also deleted the provision that a property can be designated as Waqf Property by immemorial use. There should be valid Waqfnama to prove the authenticity of the demand.
- In the previous act where in the case of any disputes Waqf Tribunal’s decision was final but in the new bill appeal mechanism is introduced. That gives a chance to appeal any decision of the tribunal to the High Court.
- The new amendment also suggests that Non-Muslim Members can be appointed as CEO of Waqf Boards and State Waqf Boards must have at least two non-muslim members.
- The new amendment authorizes the Central Government to audit any Waqf Property by auditors appointed through the Comptroller and Auditor General of India. Where earlier there was no such provision.
- The act also proposed establishing two separate Waqf boards for Shias and Sunnis if Shia Waqf constitutes more than 15% of all Waqf property or all Waqf income in the State. The Bill also discusses establishing separate Waqf Boards for Aghakhani and Bohra States.
Issues regarding The Amendment Bill
The proposed amendment bill has created a lot of disarray in society. Critics argued that the bill has moved towards the Centralisation of Waqf properties which means the real controlling power over Waqf properties is shifting toward Central Governments where earlier it was in the hands of the Muslim Community. The Bill also infringes on The right to Freedom of Religion of that community to manage their religious affairs. There is also disagreement over the inclusion of Non-Muslim members in the Waqf boards. Because those members may lack a proper understanding of the religious practices and beliefs of Islam. In the new bill supreme authority is given to District Collectors over Waqf Tribunals this can lead to bureaucratic delays in the proceedings and further complicate the resolution process. Critics are also arguing over the fact that the drafting of the new bill was done without proper consultation with the Muslim Community and stakeholders. As a result, the bill lacks proper inclusivity.
The New Amendment and its role in resolve issues regarding Waqf Properties
The proposed amendments aimed towards enhancing the operational transparency of Waqf Boards in matters related to financial and administrative constraints. The demand for reforming Waqf properties also came from Muslim Communities. As per the data released by the Ministry of Minority Affairs from April 2023, it has received 148 complaints pertaining mostly to encroachments, illegal sales of waqf land, delays in surveys and registration, and complaints against waqf boards and Mutawallis. The data released from the Centralized Public Grievance Redress and Monitoring System (CPGRAMS) shows that from April 2022 to March 2023 out of 566 complaints received, 194 related to encroachment and transfer of waqf land illegally and 93 complaints were against the officials of waqf boards/Mutawallis.
The new bill provides a chance to appeal any verdict of the Waqf Tribunal in the Higher Courts. That ensures accountability and transparency in the proceedings of dispute resolution. Where earlier it was missing.
The new amendment suggested that women should be there as representatives in Waqf boards leading toward women’s empowerment.
Conclusion
India has the largest number of Waqf in the World. Nationally, they are the largest landholders after Railways and Defence with approximately 8 lakh acres of land with an estimated value of about Rs 1.2 lakh crore. Though Waqfs are specially created for the betterment of the Muslim Community these public institutions are also important for society’s upliftment. So. If any law comes for better inclusivity and governance of those properties, rather than denying it all together under the veil of religion-centric infringement, its ramifications on the whole society should taken into consideration. As the bill is currently under the Joint Parliamentary Committee proper debate and discussion over the matter is the need of the hour, and the opinions of Stakeholders are of greater importance to decide its viability.
Author(s) Name: Soumi Kundu (Calcutta University, Kolkata)
