INTRODUCTION
Articles 25, 26, 27 and 28 of the Constitution of India Guarantee the right to freedom of religion to all citizens and in some cases even to non-citizens, this is an essential right considering India’s vast religious diversity and heritage culture of religious tolerance and inclusion. Each religion and sect has unique practices, and the government tries to keep its distance and not disturb them. But when practices like waqf in Islam blatantly showcase corruption and infringement of others’ rights, it becomes necessary for the government to intervene and bring social reform. What started as a medium to uplift the poor section of Islam through charity is now a running show of corruption and property snatching. Considering this, the government introduced the “The Waqf Amendment Bill, 2024” which aims to amend The Waqf Act of 1995, granting waqf authorities unlimited power without any judicial review. The bill tabled on August 28, 2024, aims to correct all these and to restore waqf’s true meaning – social reform through charity. This blog explores the meaning of waqf, legislative history, the bill of 2024, critical analysis of arguments over the bill, and a conclusion.
WHAT IS WAQF AND ITS LEGISLATIVE HISTORY
Waqf is an Islamic endowment of property held in trust for charitable and religious purposes. The practice of Waqf has been observed in Islam since the 7th century. A certain dedication is made towards establishing public institutions like schools, hospitals, and lodges for the downtrodden, destitute, indignant, etc. It is a practice to uplift the poor and contribute a share of life to society’s upliftment. The waqf property can also be movable or immovable and is called ‘auqaf’. The person dedicating such property is called ‘waqif’. After the dedication, a person is allotted to maintain and upkeep the property, called ‘mutually’. All these activities constitute the practice of waqf in Islam.
The practice of waqf in India was for the first time administered legislatively from 1913 through the – “Mussalaman Waqf Act, 1913”. It was enacted to advise on matters of waqf management and establish waqf boards. In 1954 – the first time in independent India – the Wakf Act, 1954 was passed to better administer and supervise Wakf properties, and Central and State Waqf boards were established. This act was later repealed in 1995 and the currently working act – The Waqf Act, 1995 came into existence. It changed from wakf to waqf. It gave many more powers to the waqf boards not limited to just administering waqf properties. In 2013, this act was further amended to give unlimited unquestioned powers to the waqf boards empowering them to snatch any property by claiming it as waqf. It cannot be challenged in court as well.
HIGHLIGHTS AND KEY POINTS OF THE WAQF AMENDMENT BILL, 2024
The bill introduces 44 changes in the Waqf Act, of 1995. Some of the key points and important highlights are:
- Renaming the act – The act will be renamed from Waqf Act,1995 to “Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995”.
- Constitution of Waqf – only a person practising Islam for at least five years can declare waqf. The property being declared as waqf must be owned by him. “Waqf-alal-aulad” will not result in the denial of inheritance rights to the donor’s heir including women heirs.
- Government properties as waqf donation – government properties identified as waqf will cease to be so.
- Power to determine waqf – The power of the waqf board to declare any property as waqf will cease after the bill is passed.
- Survey of Waqf properties – Collectors will be empowered to do the Waqf survey. The pending surveys will be done according to the state revenue laws.
- Composition of Central Waqf Council—The bill introduces a mandate for non-Muslim members on the board. Two women must be present among Muslim members.
- Composition of Waqf Boards – The state government will be empowered to nominate members to the board. It also mandates the inclusion of non-muslims, members from Shia, Sunni, Bohra, Agakhani, and other backward class members and two women.
- Appeal on orders of Waqf Tribunals – The bill cancels the finality of the waqf tribunal’s decisions. The Waqf tribunal’s decision may be appealed in the High Court within ninety days.
- The intervention of central government – the central government can get the declared waqf properties audited by the Comptroller and Auditor General of India (CAG) or designated officers of the state.
- Waqf boards for Bohra and Agakhani communities – separate waqf boards will be formed for Agakhani and Bohra sects.
- Modernization of waqf property management – an online portal called Waqf Assets Management System of India (WAMSI) developed in 2021 for the digitization of records of waqf properties and geographic mapping will be uniformly implemented.
ARGUMENTS IN FAVOR OF THE BILL:
- Addresses administrative inefficiencies—The 1995 act and its 2013 amendment have been criticized for administrative and official inefficiency, leading to a large number of complaints about ownership and possession, encroachment, registration disputes, etc. The 2024 bill tries to solve these by centralizing the power and restructuring the boards.
- Counters mismanagement and corruption – non-maintenance of proper records, corrupt mutawallis, misuse of Section 40 of the Waqf Act To declare any property as waqf will be tackled by this bill’s provisions.
- Fills in the legal and administrative gaps—the new bill has a provision for appeal in high courts if one is not satisfied with the waqf tribunal’s decision, which before this bill was the ultimate decision. This provision aids judicial review as well.
- Enhances transparency and accountability – with the introduction of a new database management system and proper registering the transferring of all donated waqf properties, transparency is ensured. Now, the collectors will be empowered to survey waqf properties of a state leading to better accountability.
- Modernizes Waqf property management – The Waqf Assets Management System of India (WAMSI) introduced in 2021 will be revamped and implemented in a more accessible and uniform way in all states to ensure better property management with an annual return filing management feature as well. There will be a provision for commercializing and leasing the waqf assets as well.
ARGUMENTS AGAINST THE BILL:
- Impacts religious autonomy – the introduction of non-muslim members as mandatory in waqf boards is opposed as waqf is an Islamic practice, and no other religion’s follower will be able to understand its essence. It is also reasoned that such provisions hamper the religious autonomy of the religion.
- Lacks clear safeguarding framework for minority rights – right to freedom of religion Guarantees each person’s right to profess, propagate, and practice rituals as one wishes. However, such changes interfere with one’s practice of religion and violate the rights guaranteed.
- Gives away all the power of management to the centre– centralization is evil – is paraded all over India after the bill. The community believes that taking away their power to manage the assets donated and giving them to the crowd will result in misuse of power and erase the essence of waqf which is to help the downtrodden Islam followers.
- Infringement of property rights – the new bill mandates a person to practice Islam for 5 years before doing waqf, which is being opposed as it curtails one’s right to manage his property.
CONCLUSION
The Waqf Amendment Bill, 2024 is due which should be cleared and approved. It is the first step towards correcting the mistakes committed by granting unrestricted power and shield from judicial review through the 2013 amendment to the 1995 act. There have been n number of cases against the waqf boards’ wrong actions – Vijaypura farmer’s land acquisition, coastal Kerala fisherman community being evicted from their 3 generational lands, many churches under waqf properties, all of these cannot be donated when their real owners are protesting the encroachment. The bill aims to correct all these along with bring new provisions for a modern management of waqf properties with a lesser chance of corruption. The bill has faced a lot of criticism stating that it infringes on religious right to manage their affair. However, this argument is unfair considering such a right is granted only to religious denominations and Islam is a whole religion, not a religious denomination. This bill should be passed to restrict the uncontrolled action of waqf boards across the country. After the bill is passed, people will have a chance to appeal against the waqf tribunal’s decision, thereby widening the scope of judicial review, which is much needed. The inclusion of Agakhani and Bohra members in the boards and separate boards for Shia and Sunni sects ensure proper representation of all. The survey of waqf properties according to state tax laws for filing returns is a great step towards ensuring ground-level social reform which was the main motto with which this practice originated.
Author(s) Name: Bhavya Shrivastava (Bharati Vidyapeeth (Deemed to be University) New Law College,Pune)
