Authored By: Khadeeja Sadiq
Aligarh Muslim University
Abstract:
The Waqf (Amendment) Bill, 2024, marks a significant legislative attempt to reform the administration and regulation of waqf properties in India. Introduced in the Lok Sabha on August 8, 2024, the Bill seeks to amend the Waqf Act, 1995, by introducing provisions to ensure transparency, inclusivity, and efficiency in waqf management. Key changes include the renaming of the Act, mandatory registration of waqf properties, removal of oral declarations, enhanced role of the District Collector, inclusion of women and non-Muslims in waqf boards, and provision for separate boards for sects like Bohras and Aghakhanis. While the Bill has been hailed for its emphasis on accountability, digitisation, and protection against encroachment, it has also drawn criticism for infringing upon religious autonomy, ignoring community consultation, and potentially causing bureaucratic delays. This paper critically examines the historical evolution of waqf laws, the major changes proposed in the 2024 Amendment, its expected impact, and the criticisms it has invited, highlighting the challenges of balancing reform with respect for religious and community sensitivities.
Keywords:
Waqf Amendment Bill 2024, Waqf Act 1995, Religious Endowments, Property Law, Muslim Law, Religious Freedom, Minority Rights, Governance, Transparency, Community Representation.
Introduction:
The meaning of the term Waqf is ‘detention’, ‘stoppage’, or ‘tying up’. Waqf under Muslim law means “the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings”1. As a result the ownership is transferred to the Almighty. Since 1913 various laws were implemented to manage Waqf property. Recently 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.
In this project work I will be discussing the changes introduced by the amendment Bill and what are the significance of the bill as well as the criticisms it is facing.
What is Waqf?
A Waqf is personal property given by Muslims for a specific purpose – religious, charitable, or for private purposes. While the beneficiaries of the property can be different, the ownership of the property is implied to be with God.
A Waqf can be formed through a deed or instrument or orally, or a property can be deemed to be Waqf if it has been used for religious or charitable purposes for a long period of time. Once a property is declared as Waqf, its character changes forever, and cannot be reversed.2 Under the Waqf Act of 1954, a Waqf refers to a property dedicated in the name of God for religious and charitable purposes. Legally, it is the permanent dedication by a Muslim of any movable or immovable property for purposes recognised by Muslim law as pious, religious, or charitable.
Definitions:
Abu Hanifa: “It is the detention of a specific thing in the ownership of the waqif or appropriator, and the devoting it’s profits or usufruct to charity, the poor, or the other g objects, in the manner of arrest or commodate loan”.
Abu Yusuf: “Waqf is the detention of a thing in the implied ownership of Almighty God in such a manner that it’s profits May revert to or be applied to the benefit of his creatures”.3
Historical Background:
In 1894, a judgment came in Abdul Fata Mahomed Ishak v. Russomoy Dhur case which became a landmark decision in the matter. It ruled that primarily benefiting the family was invalid unless those were dedicated to charity. Dissatisfaction with the judgment led to the Mussalman Wakf Validating Act of 1913 which reversed it.
The Mussalman Wakf Act of 1923 mandated proper accounting, but mismanagement persisted. Further, amendments like the Bengal Waqf Act (1934) and the Bihar Waqf Act were introduced. These legislations proved there was a need for dedicated laws to manage Muslim endowments which was in contrast with previous secular laws.
POST-INDEPENDENCE AND POST PARTITION OF THE COUNTRY: After 1947, the Mussalman Waqf Act, 1923 was applicable for managing Waqf properties. However, in 1954, the then-Congress Government introduced the Waqf Act, 1954, which centralised the administration of these properties. It also established Waqf Boards with significant powers. However, it raised suspicions about the government’s intentions, particularly regarding appeasement of one community. The act led to the repealing of several
pre-independence laws and changed the administration of Waqf properties extensively. In 1984, the Waqf Inquiry Committee submitted a report leading to the Waqf (Amendment) Act which aimed to restructure the Waqf administration and address financial and operational loopholes. However, the Muslim community strongly objected to it, particularly to the powers granted to the Waqf Commissioner and the Act could not be fully enforced. Later, The Waqf Act 1995 was enacted which consolidated and amended previous laws. It retained major provisions from the 1984 Amendment Act. However, the Muslim community was still against it which led to the formation of a Joint Parliamentary Committee (JPC) to recommend improvements. Based on the JPC’s recommendations, the Waqf (Amendment) Act, 2013 was enacted giving Waqf more powers.4
Waqf Amendment Bill, 2024
On August 8, 2024, two bills, the Waqf (Amendment) Bill, 2024 was introduced in the Lok Sabha with an aim to streamline the Waqf Board’s work and ensure the efficient management of Waqf properties.
The objective of the Waqf (Amendment) Bill, 2024, is to amend the Waqf Act, 1995, to redress the issues and challenges in regulating and managing Waqf properties. The Amendment Bill seeks to improve the administration and management of Waqf properties in India. It aims to overcome the shortcomings of the previous act and enhance the efficiency of Waqf boards by introducing changes such as renaming the Act, updating the definitions of Waqf, improving the registration process, and increasing the role of technology in managing Waqf records. The statement of objects and reasons by Union Minister Kiren Rijiju said, “The Waqf Act, 1995, was enacted to provide for the better administration of Auqaf and for matters connected therewith or incidental thereto. However, during the course of implementation of the Act, it is felt that the Act has not proved effective in improving the administration of auqaf5.
PROPOSED KEY CHANGES
By the amendment Act various changes has been introduced. The definition of Waqf property, increased government control and representation of women and hindus are some of them.
Renaming of The Act:
The name of the Act has been changed to “Unified Waqf Management, Empowerment, Efficiency and Development Act”, 1995. The parent Act was named Waqf Act, 1995.6
Dedication of Waqf Property:
Under the earlier Act the property could be dedicated by any person but now only the person who is practising Islam for at least five years and is the owner of the property can dedicate his property7.
Registration of Waqf Property:
Earlier registration of Waqf property was not mandatory and the oral declaration was valid to constitute waqf. The amended bill has proposed mandatory registration of Waqf properties with the District Collector’s Office for evaluation8.
Representation of women and non-muslims :
Two non-Muslim members are added in the Central Waqf Council. MPs, judges, and eminent persons need not be Muslims. However, Muslim members must include two women. In the Earlier act there was no explicit mention about the representation of the non Muslims or women9.
Separate board for Bohras and Aghakhanis:
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.
Power of Central Government:
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.
Under the Act, state government may get the accounts of Waqf audited at any point. The Bill empowers the central government to get these audited by the CAG or a designated officer.
District Collector’s role:
The power to identify whether a property is a waqf property or not has been designated to the district collector. Furthermore, the requirement that a chief executive officer (CEO) must be a Muslim has been removed, according to Note 1, Clause 15 of the Bill. The collector will adjudicate the ownership of waqf lands in case of an altercation.
Waqf by Use:
1995 Act provided for Waqf by use. This means that a property could be deemed to be a Waqf through use even if the original declaration is suspect. The amendment omits the provisions relating to “Waqf by use”. It makes a Waqf property suspect in the absence of a valid Waqfnama.
Appeal on Tribunal Order:
Waqf Tribunal’s decision was considered final. Now the High Court can consider matters on its own accord, on an application by the Board, or an aggrieved party. The Bill omits provisions deeming finality to Tribunal’s decisions. Tribunal’s orders may be appealed in the High Court within 90 days.
Oral Recognition of Waqf:
Oral recognition was admissible for consideration of a property as Waqf. It removes provisions to allow a property to be considered Waqf based on oral declarations. Properties without a valid 9 “The Waqf Amendment Bill 2024, Origin, Structure, Key Changes” available at: https://vajiramandravi.com/quest-upsc-notes/waqf-amendment-bill-2024/#waqf-amendment-bill-2024- provisions-key-changes (last visited on November 8,2024) waqfnama will be treated as suspect or disputed and will remain inactive until the District Collector makes a final decision.
Significance of the bill
The Waqf Amendment Bill 2024 is a significant legislative proposal aimed at modernizing and improving the management of Waqf properties in India.
It is significant for the following reasons:
- Transparency and Accountability: Enhances oversight and regulations to prevent abuse and mismanagement of Waqf properties.
- Inclusion and Diversity: Mandates more women and non-Muslims on Waqf Boards to promote diversity and community representation.
- Representation of Bohras and Aghakhanis: Establishment of separate Waqf board for Bohras and Aghakhanis is a welcome step to promote inclusion of different sects. d. Mismanagement and Corruption of Waqf Boards: There have been concerns regarding the lack of transparency in the operations of Waqf Boards, in financial and administrative operations. The proposed amendments are aimed at enhancing the operational transparency of Waqf Boards.
- Protection of Properties: Introduces stricter penalties and increases Waqf Board powers to prevent encroachment and illegal transfers.
- Streamlined Administration: Updates processes and uses technology to improve record keeping and reduce bureaucratic delays.
Criticism:
Though the Waqf Amendment Bill has various significance with regard to the management of the Waqf property it is facing various shortcomings which lead to the emergence of nation wide criticism. Some of the criticisms are discussed as under:
Infringement of the right to freedom of religion- Mandatory inclusion of two non Muslim members in each waqf board as per Note 1, Clause 9,11 of the Waqf Amendment Bill, 2024 is a grave infringement of the right to freedom of religion as the institution needs experts in Muslim law and jurisprudence, practising Islam, for a transparent and reliable
administration. When the Bill creates this imperative for the waqif (the one who creates waqf) to be a practising Muslim, then the guardians of the waqf also must be Muslim.10 Encroachment on numerous waqf properties- The type of property of which there is no record and which is used by waqf for welfare purposes is deemed to be waqf property, also called ‘waqf by user’, recognised under the Waqf Act of 1995.Although the present Bill has not recognised ‘waqf by user’, enabling the government to encroach on numerous waqf properties which have been utilised for centuries merely because of the unapproachability of the waqf deed is also not right11.
Potential for Increased Disputes- Removal of the waqf tribunal’s authority and the assignment of this role to district collectors, could lead to increased disputes over Waqf properties. Critics argue that this could complicate the resolution process and expose properties to further legal challenges.
Bureaucratic delays- Inserting a clause for the mandatory registration of properties may overburden the office of the district collector, which in turn slows down the process of registration12.
Lack of Community Consultation- The bill has been criticized for being drafted without adequate consultation with the Muslim community and stakeholders. Many organizations, including the All India Muslim Personal Law Board, have voiced their concern that the bill was created without their input.
Conclusion:
During the last several decades the Central and State governments have constituted a number of commissions and committees to inquire into the pathetic condition of waqf administration. There are several recommendations submitted by the Joint Parliamentary Committees and House Committees of the State Legislature to improve the dismal performance of waqfs. On the recommendations of the Justice Sachar Committee, the National Waqf Development Corporation was established in 2013, with a paid-up capital of Rs.100 crore. The Joint Parliamentary Committee headed by Rahman Khan recommended the digitisation of waqf records among other recommendations. But no action has been heard of during the last many years.
The waqf law In India is not bad, but many of the proposed amendments in this Bill will cause more harm than good to the cause of waqf. A pristine administration of the waqf can be ensured with the dedication and devotion of its administrators as well as astute action by all the stakeholders.
Bibliography:
Books:
Aqil Ahmad, Mohammedan Law (Central Law Agency, Prayagraj, 27th edn., 2022) Mulla, D.F, Principles of Mohammedan Law (Mansoor Book House, Lahore, Pakistan, 20th edn.,1995)
Statute:
THE WAQF (AMENDMENT) BILL, 2024 (Bill No. 109 of 2024)
Websites:
Asad Rehman, “Explained: The proposed changes to Waqf law”. Available at: https://indianexpress.com/article/explained/explained-law/proposed-changes-to-waqf law 9503596/ (last visited on November 8, 2024)
Anurag, “From verse of Prophet to Delhi Sultanate’s land allocation for Jama Masjid to Waqf Act of 1995: All you need to know about Waqf and its history in India”. Available at: https://www.opindia.com/2024/08/all-you-need-to-know-about-waqf and-its-history in-india/ (last visited on November 8, 2024)
Vijaita Singh, Ishita Mishra, “Amendment to Waqf Act proposes inclusion of non-muslims and Muslim women in Waqf boards; strips the Board of powers to declare a property as waqf”. Available at: https://www.thehindu.com/news/national/amendment-to-waqf-act proposes-inclusion-of-non-muslims-and-muslim-women-in-waqf-boards-strips-the-board of-powers-to-declare-a-property-as-waqf/article68495185 (last visited on November 8, 2024)
“The Waqf (Amendment) Bill 2024- Key changes, Reasons and Concerns- Explained Pointwise”. Available at: https://forumias.com/blog/the-waqf-amendment-bill-2024 key changes-reasons-and-concerns-explained-pointwise/#toc3 (last visited on November 8, 2024)
“The Waqf Amendment Bill 2024, Origin, Structure, Key Changes”. Available at: https://vajiramandravi.com/quest-upsc-notes/waqf-amendment-bill-2024/#waqf amendment-bill-2024-provisions-key-changes (last visited on November 8, 2024)
Ayesha Azka, “From legitimacy to conspiracy: Decoding the Waqf Bill, 2024” available at: https://theleaflet.in/author/ayesha-azka/ (last visited on October 25, 2024) 7. “Parliamentary committee meeting on Waqf Amendment Bill sees another clash”. Available at: https://www.deccanherald.com/india/parliamentary-committee-meeting on waqf-amendment-bill-sees-another-clash-3250550 (last visited on November 8, 2024)
1 Aqil Ahmad, Mohammedan Law 303 (Central Law Agency, Prayagraj, 27th edn., 2022)
2 Asad Rehman, “Explained: The proposed changes to Waqf law “ available at: https://indianexpress.com/article/explained/explained-law/proposed-changes-to-waqf-law-9503596/ (last visited on November 8, 2024)
3 Supra note 1 at 304
4 Anurag, “From verse of Prophet to Delhi Sultanate’s land allocation for Jama Masjid to Waqf Act of 1995: All you need to know about Waqf and its history in India” available at: https://www.opindia.com/2024/08/all-you need-to-know-about-waqf-and-its-history-in-india/ (last visited on November 8, 2024)
5 Vijaita Singh, Ishita Mishra, “Amendment to Waqf Act proposes inclusion of non-muslims and Muslim women in Waqf boards; strips the Board of powers to declare a property as waqf”. Available at: https://www.thehindu.com/news/national/amendment-to-waqf-act-proposes-inclusion-of-non-muslims-and muslim-women-in-waqf-boards-strips-the-board-of-powers-to-declare-a-property-as-waqf/article68495185 (last visited on November 8, 2024)
6 “The Waqf (Amendment) Bill 2024- Key changes, Reasons and Concerns- Explained Pointwise” available at: https://forumias.com/blog/the-waqf-amendment-bill-2024-key-changes-reasons-and-concerns-explained pointwise/#toc3 (last visited on November 8,2024)
7 THE WAQF (AMENDMENT) BILL, 2024 (Bill No. 109 of 2024),s.3(ix)
8 “Parliamentary committee meeting on Waqf Amendment Bill sees another clash” available at: https://www.deccanherald.com//india/parliamentary-committee-meeting-on-waqf-amendment-bill sees-another-clash-3250550 (last visited on November 8,2024)
10 Ayesha Azka, “From legitimacy to conspiracy: Decoding the Waqf Bill, 2024” available at: https://theleaflet.in/author/ayesha-azka/ (last visited on November 8,2024)
11 Ibid
12 Supra note 2
