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The government on Thursday referred the Waqf (Amendment) Bill, 2024, to a Joint Committee of Parliament. The tabling of the Bill by Union Minister of Minority Affairs Kiren Rijiju was met with strong criticism from the Opposition parties who said the proposed law was “unconstitutional”, “anti-minority”, and “divisive”.
The Bill seeks to amend the 1995 Waqf Act, and proposes sweeping changes to how Waqfs are governed and regulated. What is the law on Waqf? What amendments has the Bill proposed, and why are these changes significant?
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.
Waqf properties in India are governed by the Waqf Act, 1995. However, India has had a legal regime for the governance of Waqfs since 1913, when the Muslim Waqf Validating Act came into force. The Mussalman Wakf Act, 1923 followed. After Independence, the Central Waqf Act, 1954, was enacted, which was ultimately replaced by the Waqf Act, 1995.
In 2013, the law was amended to prescribe imprisonment of up to two years for encroachment on Waqf property, and to explicitly prohibit the sale, gift, exchange, mortgage, or transfer of Waqf property.
The Waqf law provides for the appointment of a survey commissioner who maintains a list of all Waqf properties by making local investigations, summoning witnesses, and requisitioning public documents.
A Waqf property is managed by a mutawalli (caretaker), who acts as a superviser. Waqf properties are managed in a way that is similar to how properties under Trusts are managed under the Indian Trusts Act, 1882.
The Waqf Act states that any dispute related to Waqf properties will be decided by a Waqf Tribunal. The Tribunal is constituted by the state government, and comprises three members — a chairperson who is a state judicial officer not below the rank of a District, Sessions or Civil Judge, Class I; an officer from the state civil services; and a person with knowledge of Muslim law and jurisprudence.
The law also has provisions for the constitution and appointment of Waqf Boards, Waqf Councils, Chief Executive Officers for Waqf Boards in the states. The CEOs and parliamentarians who are part of the Waqf Boards must be from the Muslim community.
A Waqf Board is a body under the state government, which works as a custodian for Waqf properties across the state. In most states, there are separate Waqf Boards for the Shia and Sunni communities. Almost all prominent mosques in the country are Waqf properties and are under the Waqf Board of the state.
A Waqf Board is headed by a chairperson, and has one or two nominees from the state government, Muslim legislators and parliamentarians, Muslim members of the state Bar Council, recognised scholars of Islamic theology, and mutawallis of Waqfs with an annual income of Rs 1 lakh and above.
A Waqf Board has powers under the law to administer the property and take measures for the recovery of lost properties of any Waqf, and to sanction any transfer of immovable property of a Waqf by way of sale, gift, mortgage, exchange, or lease. However, the sanction shall not be given unless at least two thirds of the members of the Waqf Board vote in favour of such a transaction.
The Bill seeks to substantially alter the existing framework of Waqf law. The proposed amendment shifts the power of governing Waqfs from the Boards and Tribunals, which are largely run by the Muslim community, to the state governments.
Among the key changes in the Bill:
* The Bill seeks to change the name of the parent Act from the Waqf Act, 1995, to the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995.
* It seeks to introduce three new provisions in the Act:
First, Section 3A, which states that no person shall create a Waqf unless he is the lawful owner of the property and competent to transfer or dedicate such property. This provision appears to address the assumption that land that does not belong to an individual is not given as Waqf.
Second, Section 3C(1), which states that “government property identified or declared as Waqf property, before or after the commencement of this Act, shall not be deemed to be a Waqf property”.
Third, Section 3C(2), which empowers the government to decide if a property given as Waqf is government land. “If any question arises as to whether any such property is a Government property, the same shall be referred to the Collector having jurisdiction who shall make such inquiry as he deems fit, and determine whether such property is a Government property or not and submit his report to the State Government,” says the Bill.
This provision essentially means that the Collector — and not the Waqf Tribunal — will make this determination in case of a dispute. The proposed clause also states that such property “shall not be treated as Waqf property till the Collector submits his report”. This means that until the government decides the issue, Waqf cannot be in control of the disputed land.
The proposed Bill would also give the central government the power to “direct the audit of any Waqf at any time by an auditor appointed by the Comptroller and Auditor-General of India, or by any officer designated by the Central Government for that purpose”.
These provisions, when read together, indicate that the Bill carries a presumption that government land is incorrectly deemed Waqf property in some cases, and that the issue needs intervention by the government.
* The Bill also redefines how a property is deemed to be in the possession of Waqf. as it seeks to remove the concept of “Waqf by use”. Under the 1995 law, a property by continuous and uninterrupted use by Muslims for religious purposes is “deemed” to be a Waqf property. This means that a property can be deemed to be a Waqf through use even if the original declaration is suspect. Several mosques and graveyards could fall in this category.
The proposed Bill, by omitting the provisions relating to “Waqf by user,” makes a Waqf property suspect in the absence of a valid Waqfnama.
* The Bill proposes to change the composition of Waqf Boards in states. It proposes to allow even a non-Muslim CEO, and gives the power to the state government to have at least two non-Muslim members to the state Waqf Boards.
