Waqf Bill set to be tabled, what is the concern over ‘retrospective’ implementation?

The JD(U)’s point

On Tuesday, JD(U) MP and party national working president Sanjay Jha said that Bihar Chief Minister Nitish Kumar’s work for the Muslim community has been “visible” for the “past 19 years”, and he has “never allowed anything against the Muslim community to happen”.

Jha said that JD(U) members in the Joint Committee of Parliament had said that the provisions of the Bill “should not be implemented with retrospective effect, and there should be no effect on something which has been the way it is in the past”.

“We hope that the government will consider it,” Jha said.

Retrospective implementation

The existing Waqf Act, 1995, recognises the concept of “Waqf by user” – that is, properties being used as Waqf properties will remain Waqf even if the user does not exist.

This provision refers to properties that are treated as Waqf on the basis of their long-term use for religious or charitable purposes, even without formal documentation. Several mosques and graveyards could fall in this category.

The amended Bill has proposed removing Waqf by user. This, critics fear, can potentially create disputes over long-time Waqf properties which, for whatever reason, do not have a valid Waqfnama.

Critics have said that it is also unclear whether this change will apply prospectively or retrospectively to existing “Waqf by user” properties. With retrospective application, existing Waqf by user properties may cease to be Waqfs, they say.

Position of parties

During the first meeting of the Joint Committee of Parliament in August last year, NDA allies JD(U), LJP(Ram Vilas) and TDP had taken a “neutral” stand, and at least two of these parties had wanted the concerns expressed by Muslim organisations to be addressed.

Subsequently, however, the NDA had been united – JD(U) and TDP members were among those who proposed some of the amendments, and during voting in January, the JD(U), TDP, and LJP (Ram Vilas) favoured the amendments. This was a signal that the parties would support the Bill in its revised form.

Concerns of Opposition

Some of the contentious provisions in the Bill include allowing a non-Muslim to become the chief executive officer of the Waqf board, making a provision for at least two non-Muslim members to be appointed by state governments to their state’s Waqf board, giving the district collector the power to determine if a disputed property is indeed Waqf, doing away with the concept of Waqf by user, mandating that every Waqf property be registered on a central database within six months of the law’s commencement, and removal of the provision that made the Tribunal’s decision final.