INTRODUCTION
The Waqf Act, 1995 defines ‘waqf’ as a permanent dedication by any person, of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable. It is irrevocable and thus emphasizes the idea “once a waqf, always a waqf”. The concept seems simple to understand but its application and administration becomes difficult. The bodies administering waqf have to face problems of corruption and lack of transparency. The Waqf (Amendment) Bill, 2024 seeks to increase the efficiency and accountability in administration. But the bill has been challenged for fear of excessive state control and has thus been referred to a Joint Parliamentary Committee. The blog aims to explain the features of the bill, its advantages, and disadvantages so that a comprehensive understanding can be achieved.
HISTORY OF WAQF
Waqf has been a practice among the Muslims from time immemorial. It does not find any mention in the Holy book but the deeds and words of the Prophet provide a basis for it. In India, the practice emerged in the Delhi sultanate period but for a long time, there was no codified law of the state for its regulation. In the pre-independence period, under British rule, the Muslim Wakf Validating Act of 1913 was formulated to regulate the practice of waqf. Then in 1923, the Mussalman Wakf Act was introduced to improve the management of waqf bodies and properties. But under this act, the dispute resolution was to be done by the civil courts which led to further disorder.
After independence, in 1954, the Central Wakf Act came and created separate administrative bodies at the central and state level in the form of the Central Waqf Council and the State Waqf Boards. This act was replaced by the Waqf Act, 1995 which was further amended in 2013 to give extensive powers to the waqf boards. The Waqf (Amendment) Bill, 2024 seeks to bring an overhaul to the existing condition.
FEATURES OF THE BILL
The bill has proposed many amendments in the form of changes, additions, and omissions.
- Changes
The first and primary change that the bill seeks to bring is to rename the Act as Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995. It seeks to clarify the purpose of the act. Another change is that any government property recognized as waqf will cease to be so. The power of conducting preliminary surveys on the waqf properties has been transferred from the Survey Commissioner to the District Collector.
Under the bill, the composition of the Waqf boards would be altered to include at least two non-Muslim members as well as two Muslim women, both in the Central Waqf Council and State Waqf boards.
The formation of waqf can only be initiated by a person – (i) practising Islam for at
least five years and (ii) who is the owner of the property undergoing waqf. Moreover,
it should not lead to the denial of inheritance rights of the heirs, especially women heirs.
The bill also provides for the restructuring of the tribunals in various ways like removal of the mandate of including an expert in Islamic Laws.
- Omissions
As proposed in the bill, Section 7 (1) of the act which gives finality to the decisions of the tribunal is to be omitted. Instead, the bill allows for appeals in the High Courts within 90 days. Section 40 of the Act would also be removed which in turn would limit the powers of the board in determining waqf properties.
Section 107 would also be removed, allowing for the invocation of the Limitation Act, 1963.
- Additions
A few enhancements have been made to the bill. All the details regarding all the waqfs made till now have to be filed on a centralized portal within six months of the commencement of the amendment act. Clause 10 of the bill seeks to establish separate waqf boards for Agakhani and Bohra sects. The centre may legislate on matters regarding – (i) registration, (ii) publication of accounts of waqf, and (iii) publication of proceedings of the waqf boards.
Given the features of the bill, it is important to understand how they affect the administration of waqf properties and the society at large. Only after understanding the impact of the bill, can one truly determine whether the amendments can bring justice.
The impact of the bill can be perceived by analyzing its merits and demerits.
MERITS OF THE BILL
Mandatory registration under Clause 4 of the bill and the obligation to update the details of the waqf properties on the centralized portal can enhance transparency and increase efficiency. It aims to bring inclusivity in the community by considering the different sub-communities such as Shia, Sunni, Aga Khani, Bohra, etc. By allowing appeals to the high courts the bill aspires to make the dispute resolution process more democratic while also increasing its efficiency and its potential for rendering justice. As the main aim of the bill is to reduce malpractices and corruption, the bill seeks to amend section 64 (1) (g) of the act. By doing so, the bill allows for removing the mutawalli (the caretaker of the waqf property), if he fails to maintain accounts without a proper cause for a year.
CRITICISMS
While having certain benefits as stated above, the bill has certain drawbacks as well. Allowing a majority of non-Muslims on the board may cause a possible violation of Article 26 of the Constitution which confers upon religious denominations the freedom to conduct their religious affairs and manage their institutions and property. Further, it also contradicts sec 16 (a) of the act, which disqualifies a non-Muslim to be a member of the board. Thus, the two clauses of the bill contradict each other.
Under the bill, the provision for an expert in Islamic Law to be included in the waqf tribunal would be done away with. It may compromise the understanding and application of the Islamic law principles. Waqf by a user would also be revoked and the bill does not clarify whether this revocation would be applied retrospectively, thus keeping its application uncertain. The bill makes a distinction between those practising Islam for more than five years and those doing so for less than five years. This may violate Article 14 of the Constitution which is the right to equality.
CONCLUSION
To conclude, The Waqf (Amendment) Bill, 2024 attempts to bring much-needed reforms to the administration of waqf properties by prioritizing efficiency, transparency, and inclusivity. The measures to modernize Waqf administration have the potential to address long-standing issues such as corruption, and lack of accountability. However, the bill is not without its flaws. Certain aspects of the bill raise concerns about the sanctity of Islamic principles in the waqf administration and pose a challenge to constitutional values like equality and justice.
The bill thus portrays a conflict between state control and religious autonomy. To achieve the objectives of the bill, it is vital to strike a balance of reform with respect for religious principles. The state should not overreach the religious domain. Simultaneously, the religious communities should not take undue advantage of their autonomy. A collaborative approach, involving diverse stakeholders, is necessary to ensure the legislation upholds justice and fairness while respecting the religious and social dimensions of waqf.
Author(s) Name: Riya Pimputkar (ILS Law College, Pune)
