The Waqf (Amendment) Bill, 2024

Policy Update
Geetam Acharya

Introduction

The Waqf (Amendment) Bill, 2024 was introduced in Lok Sabha on August 8, 2024. It amends the Waqf Act, of 1995. The Act regulates waqf property in India. The Act defines waqf as an endowment of movable or immovable property for purposes considered pious, religious, or charitable under Muslim law. Every state is required to constitute a Waqf Board to manage waqf. The Bill renames the Act to ‘United Waqf Management, Empowerment, Efficiency and Development Act, 1995’.Waqf is an Islamic philanthropic tradition involving the donation of assets for religious or charitable purposes.

Types of Waqf:

Waqf Al-Khairi (Charitable Waqf): The benefits are directed towards the general welfare of the Muslim community such as schools, hospitals, and mosques.
Waqf Al-Ahli (Family Waqf): The benefits are initially designated for the founder’s family members, and later for charitable purposes once the family line diminishes.

Functions

The Act allows waqf to be formed by:

declaration,
recognition based on long-term use (waqf by user), or
endowment when the line of succession ends (waqf-alal-aulad). The Bill states that only a person practicing Islam for at least five years may declare a waqf.

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 Act requires that all Council members be Muslims, and at least two must be women. The Bill instead 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 following members must be Muslims: (i) representatives of Muslim organizations, (ii) scholars in Islamic law, and (iii) chairpersons of Waqf Boards. Of the Muslim members, two must be women.

Proposals in the New Waqf Amendment Bill 2024

The Waqf (Amendment) Bill, 2024 introduces several key changes to the management and regulation of waqf properties in India. Here’s a detailed look at the main proposals:

Increased Government Oversight:
District Collector’s Role: The bill empowers the district collector or equivalent government officials to act as arbitrators in disputes involving waqf properties. This is intended to ensure more direct government involvement in the administration of waqf affairs.
– Government Investigation: If there is a suspicion that a property declared as waqf belongs to the government, the district collector can investigate and make determinations about the property’s status. This could lead to changes in property records to reflect government ownership if the claim is substantiated.
Inclusion of Non-Muslim Members on Waqf Boards:
– The bill proposes that waqf boards, which have traditionally been composed entirely of Muslims, can now include two non-Muslim members. This change aims to promote inclusivity and diversity within the boards’ governance structures.
Restrictions on Property Donations:
– The amendments seek to tighten the criteria and processes for donating properties to waqf boards. This includes more stringent verification of the legality and eligibility of properties being donated, potentially reducing fraudulent or inappropriate donations.
Changes to Waqf Tribunals:
The bill aims to modify the functioning of waqf tribunals, which handle legal disputes related to waqf properties. Details on how these changes will be implemented are not fully outlined but are aimed at enhancing the efficiency and fairness of dispute resolution.
Clarification on Government Property:
An amendment specifies that any property identified or declared as waqf but later found to be government property will not be considered waqf property. This provision is meant to clarify ownership and prevent misuse of government assets.

Performance

Waqf refers to properties dedicated exclusively to religious or charitable purposes under Islamic law. The Waqf Board is reportedly the third-largest landholder in India, following the Railways and the Defence Department. Waqf boards control 8.7 lakh properties spanning 9.4 lakh acres across India, with an estimated value of Rs 1.2 lakh crore. There are 32 waqf boards, including two Shia waqf boards in Uttar Pradesh and Bihar. Control of the state Waqf boards lies in the hands of about 200 individuals.

In independent India, the Waqf Act was first passed by Parliament in 1954. It was replaced by a new Waqf Act in 1995, which gave more power to waqf boards. The accretion of power has been accompanied by an increase in complaints of encroachment and illegal lease and sale of waqf properties. In 2013, the Act was amended, conferring unlimited powers on waqf boards to claim properties in the name of Muslim charity. The amendments made the sale of waqf properties impossible, as neither the mutawwali\

Emerging Issues

The contention that the Waqf (Amendment) Bill, 2024 might conflict with certain provisions of the Indian Constitution, particularly Articles 16(5), 25, and 26, is a significant aspect of the debate surrounding this legislation. Here’s a breakdown of how these constitutional articles relate to the proposed changes in the Waqf Bill:

Article 16(5)

Provision: Article 16(5) of the Indian Constitution allows laws to stipulate that certain offices related to religious or denominational institutions must be held by persons professing a particular religion or belonging to a particular denomination.

Concern: The inclusion of non-Muslim members on Waqf boards could potentially be seen as contravening this provision, as Waqf boards manage religious endowments specifically for the Muslim community. Critics argue that allowing non-Muslims on these boards could undermine the religious specificity that Article 16(5) seeks to protect.

Article 25

Provision: Article 25 guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality, and health.

Concern: If the government’s increased control over Waqf boards leads to decisions that affect how Muslims practice their religion through the administration of Waqf properties, this could be viewed as an infringement of Article 25.

Article 26

Provision: Article 26 allows religious denominations to manage their affairs in matters of religion and to administer properties by law.

Concern: The proposed amendments granting more oversight and control to government bodies, such as the district collector’s involvement in waqf affairs, could be perceived as interfering with the Muslim community’s right to manage its religious properties autonomously.

Implications and Legal Perspectives

Legal Challenges: The changes proposed in the Waqf (Amendment) Bill are likely to face legal challenges based on these constitutional protections. Critics argue that the bill undermines the autonomy of religious communities in managing their affairs and properties, which is a right protected under the Constitution.

Government’s Rationale: The government may argue that the changes are intended to ensure better governance, transparency, and utilization of Waqf properties, which could benefit the community as a whole. However, the balancing act between administrative efficiency and constitutional rights will be a critical point of contention.

Way Forward

The debate around the Waqf (Amendment) Bill, 2024, touches on deep constitutional principles and the delicate balance between government oversight and religious autonomy. How this bill is modified, interpreted, and potentially adjudicated in the courts will have significant implications for the governance of religious properties and the rights of religious communities in India. It remains to be seen how the act will affect the legalities of properties in the future. The fact that representations by the Muslim communities about the workings of the waqf board effectively eroded the legal authority and autonomy of the board is no surprise.

References

About the Contributor– Geetam Acharya is a Research Intern at IMPRI and an undergraduate student at Sri Venkateswara College, University of Delhi with a keen interest in Political Science and International Relations.

Acknowledgement– The author would like to thank Dr Arjun Kumar, Vaishali Singh, Aasthaba Jadeja, who helped me throughout this article and reviewed the same.