By Sanjay Raman Sinha
The Waqf Board Amendment Bill, 2024, aimed at amending the existing Waqf laws, has faced flak from the Muslim community, civil society groups and the Opposition parties. The Opposition has strongly opposed the introduction of the Waqf (Amendment) Bill in the Lok Sabha. Several INDIA bloc MPs has called it an attack on the Constitution and a move to target the Muslims.
Congress MP KC Venugopal had given notice to oppose the introduction of the Bill. He said: “Through this Bill they are adding a provision that non-Muslims can also be part of the Council. There is a Devaswom Temple Board. Can it have a non-Hindu? This provision that non-Muslims can also be part of the Council is a direct attack on the faith and freedom of religion. This Bill is a fundamental attack on the Constitution. Now you are going for Muslims, then you will go for Parsis, Jains and Christians.”
Samajwadi Party chief Akhilesh Yadav decried the move to bring the amendment Bill. He asserted: “The Bill is being introduced to appease the BJP’s hardcore supporters. What is the point of including non-Muslims in Waqf boards when this is not done in other religious bodies? The truth is that the BJP has brought this Bill to appease its hardcore supporters,” Yadav alleged. The All India Muslim Personal Law Board (AIMPLB) has strongly come out against the proposed changes to the Wakf Act. AIMPLB spokesman SQR Ilyas said: “Any change in the Wakf Act which alters the nature of wakf properties or makes it easier for the government or any individual to usurp them will not be acceptable”.
Faced with stiff resistance from the Opposition, the government decided to send the Bill to the Joint Parliamentary Committee. The Speaker of the Lok Sabha appointed the 31-member Joint Parliamentary Committee.
According to the government, the Bill in Parliament to amend the 1995 law governing Waqf Boards is aimed to ensure greater accountability and transparency in their functioning and mandatory participation of women in these bodies. The Muslim groups, on the other hand, contend that the government can only regulate the Waqf and not change its character. The main contentions against the proposed Bill are: collectors empowered to survey Wakf properties; government nomination of some members; provision of two non-Muslim Waqf council members; Waqf account to be audited by CAG or designated officers; and separate Waqf Boards for Aghakhani and Bohra sects.
Union Minister of Parliamentary Affairs Kiren Rijiju defended the Bill in the Lok Sabha. He said: “The Bill doesn’t violate any provision of the Constitution. It was not brought unilaterally. The process of active consultation has started after 2015. From Ahmadiyya, Bohra, Agakhani, Pasmanda to the chairman and CEO of Waqf Board of the states, we took the opinion of everyone concerned. We have also included the recommendations of the Sachar Committee”.
Critics and Muslim groups assert that the Bill compromises on the autonomy of the Muslim community in managing its religious and charitable properties. A greater governmental control over Waqf Boards translates into encroachment on religious rights of Muslims. It is also seen as a violation of the principle of non-interference in religious matters by the state, and protection of minority rights.
With increased government control over Waqf Boards, the spectre of political interference in the management of Waqf properties is seen as a potential threat by the community. Speaking to India Legal former law secretary PK Malhotra opined: “It is my considered view that provision for a broad-based Central Waqf Council and Waqf Boards at the state level enabling representation of Muslim women and non-Muslims is a welcome step. Providing for a structured Appellate Tribunal will enable quick redressal of grievances. The Bill has been referred to the Parliamentary Committee. It is expected that if certain suggestions are made by the stakeholders for any further modifications in the Bill, the same will be duly considered by the Committee.” The institution of Waqf rests upon the Sharia, the religious law of Islam. Though Waqf, per se is not mentioned in the Holy Quran; tradition bequeathes it religious and legal legitimacy.
The Waqf bears striking resemblances to the Trust. An owner of property may declare Waqf if he has capacity to make a gift of it. No rules are prescribed. The concept of Waqf refers to the dedication of property for religious or charitable purposes. In India, the administration of Waqf properties is governed by the Waqf Act of 1995, which provides for the establishment of Waqf Boards in each state to manage these properties. Land title registration legislation makes a registered instrument setting out the terms of the waqf (waqfnama) necessary for creation of a Waqf. After Railways and the Army, Waqf Boards is the third land-rich institution of the country. The estimated value of waqf properties in India is around Rs 1 lakh 20 thousand crore. Waqf properties include mosques, graveyards, dargahs, and educational institutions, all of which are intended to serve the Muslim community. The Waqf property cannot be sold or transferred. The management and control of these properties have often been mired in controversy, leading to legal battles and demands for reforms.
Over the years, matters related to the Waqf have reached the courts where the judiciary has held that Waqf properties are inalienable and must be used for the purpose they are intended for. The courts have decided on issues of corruption, mismanagement, and disputes over property ownership related to Waqf, but in the process have also maintained a fine balance between the interests of the community with the need for transparency and accountability. The judiciary has often taken a firm stand on the protection of Waqf properties from encroachment and unauthorized occupation. Courts have issued orders for the restoration of properties to their rightful use. Courts have delivered historical verdicts on the management and control of Wakf properties. These judgments have emphasized the need for greater transparency and accountability in the functioning of Waqf Boards, all the while protecting the religious rights of the Muslim community.
Waqf properties have been always in the eye of controversy. During the colonial period, the British government sought to regulate Waqf properties through legislation. The controversy surrounding Waqf properties is not new. It has its roots in the colonial era when the British government sought to regulate Waqf properties through legislation. The British government enacted the Waqf Act of 1923 in an effort to codify and regulate the management of Waqf properties. The Muslim community saw this move as an interference in their religious activity and resisted.
In independent India, the Waqf Act of 1954, and later on the Waqf Act of 1995, were legislated to provide a legal framework for the management of Waqf properties. These laws had their shortcomings and corruption, mismanagement, and disputes over property ownership has continued. The current amendment bill comes in this backdrop to remedy ills of the Waqf Board management. However, the religious character of the minority institution has always signalled a hands-off policy for the governments; the BJP-led government has chosen to break the status quo.
The change may be the need of the hour but given the sensitive nature of the matter consultative approach may be advisable. Now that the Bill has been referred to the JPC, a political consensus may be accepted. But the Muslim community is yet to be involved in this consultative process. The divisions and fissures within the community is also deep; various factions and sects have their own locus standi. In such circumstances, it is incumbent that management of Wakf properties is carried out in a manner that respects and abides by legal and religious principles.
The proposed changes
The key provisions of the Waqf Board Amendment Bill 2024 include:
- Every state is required to constitute a Waqf Board to manage the Waqf. The Bill renames the Act to “United Waqf Management, Empowerment, Efficiency and Development Act, 1995”.
- The Bill states that only a person practicing Islam for at least five years may declare a waqf. It clarifies that the person must own the property being declared. It also adds that waqf-alal-aulad (endowment when the line of succession ends) must not result in denial of inheritance rights to the donor’s heir, including women heirs.
- The Bill states that any government property identified as waqf will cease to be so. The collector of the area will determine ownership in case of uncertainty and submit a report to the state government.
- The Act empowers the Waqf Board to inquire and determine if a property is waqf. The Bill removes this provision.
- The Act provides for the appointment of a Survey Commissioner and additional commissioners to survey waqf. The Bill instead empowers collectors to do the survey.
- The Act constitutes the Central Waqf Council to advise the central and state governments and Waqf Boards. The Union Minister in-charge of Waqf is the ex-officio chairperson of the Council. The Bill provides that two members must be non-Muslims. MPs, former judges, and eminent persons appointed to the Council as per the Act need not be Muslims.
- The Bill instead empowers the state government to nominate one person from each of the above background to the Board. They need not be Muslims. It adds that the Board must have: (i) two non-Muslim members and (ii) at least one member each from Shias, Sunnis and Backward classes of Muslims. It must also have one member each from Bohra and Agakhani communities if they have waqf in the state. The Act provides that at least two members must be women. The Bill states that two Muslim members must be women.
- The Act requires states to constitute tribunals to address disputes over waqf. The chairman of these tribunals must be a judge of the rank equivalent to a Class-1, District, Sessions, or Civil Judge.
- Under the Act, decisions of the tribunal are final and appeals against its decisions in courts are prohibited.
- The Bill empowers the central government to make rules regarding: (i) registration, (ii) publication of accounts of waqf and (iii) publication of proceedings of waqf Boards. The Bill empowers the central government to get these audited by the CAG or a designated officer.
- The Act allows establishing separate Waqf Boards for Sunni and Shia sects if Shia waqf constitute more than 15% of all waqf properties or waqf income in the state. The Bill also allows separate waqf boards for Aghakhani and Bohra sects.