Syllabus
GS Paper 2 – Appointment to various Constitutional posts; Constitutional Bodies (powers, functions and responsibilities); Statutory, Regulatory and Quasi-judicial bodies
Context
The government referred the Waqf (Amendment) Bill, 2024, to a Joint Committee of Parliament.
Source
The Hindu| Editorial dated 12th August 2024
On amendments to the Waqf Act
The Union government recently introduced a Bill in the Lok Sabha aimed at amending the Waqf Act of 1995. The legislation, renamed the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2024, has sparked debate, with opposition parties raising concerns about its impact on the religious rights of the Muslim community.
Definition of Waqf
- In Islamic law, waqf refers to property dedicated to God for religious and charitable purposes.
- This can include both movable and immovable properties.
- A waqf property is intended for public good, often used to support mosques, schools, or aid the poor, embodying an act of piety that extends charitable deeds beyond the owner’s lifetime.
- Once designated as waqf, the property cannot be inherited, sold, or transferred.
Governance Structure for Waqfs in India
- Pre-Colonial Governance:
- The legal governance of waqfs in India began in 1913 with the enactment of the Muslim Waqf Validating Act.
- This legislation was later superseded by the Mussalman Wakf Act of 1923.
- Post-Independence Governance:
- Following India’s independence, the Central Waqf Act of 1954 was introduced to regulate waqfs.
- This Act was eventually replaced by the Waqf Act of 1995, which continues to govern waqfs in India today.
Regulation under the Waqf Act, 1995
- The 1995 Act regulates waqf properties in India, requiring state governments to conduct surveys to identify and delineate these properties.
- A Survey Commissioner, appointed under the Act, identifies waqf properties through local investigations, witness testimonies, and public documents.
- Identified properties are recorded in the State’s official gazette, and a list is maintained by the State Waqf Board.
- Role of the Mutawalli:
- Each waqf is managed by a mutawalli (custodian), responsible for overseeing the administration and maintenance of the waqf property.
- Unlike trusts established under the Indian Trusts Act of 1882, waqfs cannot be dissolved by their governing board.
Role of the Waqf Board
- Establishment and Composition:
- The 1995 Act establishes Waqf Boards in each state to oversee the administration of waqf properties within their jurisdiction.
- These Boards are considered juristic persons, enabling them to sue or be sued in a court of law.
- Each State Waqf Board includes a
- Chairperson,
- Nominees from the state government,
- Muslim legislators,
- Recognized Islamic scholars, and
- Mutawallis.
- Authority and Responsibilities:
- The Waqf Board manages waqf properties and has the authority to recover lost assets.
- It can approve the transfer of immovable waqf property (e.g., through sale, mortgage, lease) with the consent of at least two-thirds of its members.
- Amendments in 2013 further restricted the sale of waqf properties, making it nearly impossible without extensive oversight.
- Central Waqf Council:
- In addition to State Waqf Boards, the Central Waqf Council serves as a national advisory body under the Ministry of Minority Affairs.
- It ensures uniform administration of waqf properties nationwide and advises the Union government on related policy matters.
Waqf Tribunal
- The Waqf Act mandates the establishment of a Waqf tribunal by state governments to adjudicate disputes concerning waqf properties in India.
- As per Section 6 of the Waqf Act 1995, the tribunal’s decision is considered final in cases involving disputes over a property’s designation as waqf.
- Composition:The tribunal consists of three members:
- Chairperson: A state judicial officer, at least of the rank of a District Judge, Sessions Judge, or Civil Judge (Class I).
- State Civil Services Officer: An officer from the state civil services.
- Muslim Law Expert: A person with expertise in Muslim law and jurisprudence.
Key Changes in the Proposed Law
- Redefinition of Waqf:
- The Bill redefines waqf, allowing only lawful property owners who have practiced Islam for at least five years to create waqf properties through formal deeds.
- The concept of ‘waqf by use,’ where property is considered waqf based on its usage, has been abolished.
- Prevention of Fraudulent Claims:
- The Bill states that government property identified as waqf before or after the Act’s commencement will not be recognized as waqf, aiming to prevent fraudulent claims.
- Inclusion of Non-Muslims:
- The Bill proposes the inclusion of non-Muslims in key waqf institutions such as the Central Waqf Council, State Waqf Boards, and waqf tribunals.
- It allows the Centre to appoint non-Muslim Members of Parliament to the Central Waqf Council and mandates that State Waqf Boards include two non-Muslim and two female members.
- Survey and Registration of Waqf Properties:
- The responsibility for surveying waqf properties will shift from survey commissioners to district collectors or officers of equivalent rank.
- A centralised registration system for waqf properties will be introduced, requiring all information to be uploaded to a central portal within six months of the law’s enactment.
- Changes in Waqf Tribunals:
- The Bill proposes reducing the composition of waqf tribunals from three members to two:
- A district judge and
- An officer of joint secretary rank.
- It removes the finality of decisions made by waqf tribunals, allowing parties to appeal directly to the High Court.
- The Bill proposes reducing the composition of waqf tribunals from three members to two:
- Enhanced Auditing and Penalties:
- The Bill empowers the Centre to audit waqf properties at any time, and Waqf Boards are required to conduct annual audits by state-appointed auditors.
- Penalties are introduced for mutawallis who fail to maintain proper accounts.
Rationale for Key Changes in the Waqf (Amendment) Bill, 2024
- Addressing Mismanagement and Corruption:
- The amendments aim to tackle concerns about the lack of transparency in Waqf Boards’ financial and administrative operations, intending to enhance the transparency and accountability of these bodies.
- Reduction of Property Disputes:
- The government asserts that the amendments will reduce the number of disputes over waqf properties by providing clear definitions and requiring mandatory verification of property claims.
- Streamlining Legal and Jurisdictional Issues:
- The current Waqf Act limits the ability to appeal Waqf Tribunal decisions in civil courts, which has led to perceptions of bias.
- The proposed amendments seek to align jurisdictional processes with the principles of natural justice, making the system more streamlined and fairer.
- Inclusion of Women:
- Allowing women to be represented on Waqf Boards is seen as a step towards empowering women and promoting gender inclusivity in the management of waqf properties.
Concerns Regarding the Waqf (Amendment) Bill, 2024
- Violation of Religious Rights:
- Critics argue that the bill may infringe on religious freedom as guaranteed by Article 25 of the Constitution
- Undermine the Muslim community’s autonomy in managing their religious affairs.
- Increased Government Control:
- The amendments grant the government greater authority over waqf properties, including involving district collectors in property disputes.
- Concerns have been raised that this could lead to bureaucratic delays and potential overreach of judicial-executive powers.
- Inclusion of Non-Muslims on Waqf Boards:
- The inclusion of non-Muslims on Waqf Boards is seen by some as undermining the integrity of these religious bodies, as non-Muslim members may lack a deep understanding of Islamic cultural and religious practices.
- Potential for Increased Disputes:
- Critics fear that removing the authority of Waqf Tribunals and assigning dispute resolution to district collectors could lead to more disputes and complicate the resolution process, potentially exposing properties to further legal challenges.
- Lack of Community Consultation:
- The bill has faced criticism for being drafted without sufficient consultation with the Muslim community and other stakeholders.
- Organizations like the All India Muslim Personal Law Board have expressed concerns that the bill was formulated without their input.
Way Forward
- Adequate Deliberations in the Joint Parliamentary Committee (JPC):
- The government should address concerns surrounding the contentious provisions of the Waqf Amendment Bill during deliberations in the JPC.
- Broader Consultation:
- Engaging in wider consultations with various stakeholders, including Muslim community leaders, legal experts, and civil society organizations, is essential to ensure that the bill reflects the community’s interests.
- Public Awareness Campaigns:
- Implementing public awareness initiatives about the Waqf system and the proposed changes can help clear up misconceptions and educate the community about their rights and responsibilities under the new framework.
Conclusion
The proposed amendments to India’s waqf law represent a significant shift in the management and governance of waqf properties, with potential implications for religious rights, autonomy, and inclusivity. While the government advocates for these changes as a means to enhance efficiency, the bill’s contentious aspects require careful consideration to ensure a balance between reform and the protection of community interests.
References
Related PYQ
Whether National Commission for Scheduled Castes (NCSCJ) can enforce the implementation of constitutional reservation for the Scheduled Castes in the religious minority institutions? Examine. [ UPSC Civil Services Exam – Mains 2018]
Practice Question
Discuss the key features of the proposed amendments to the Waqf Act, 1995. How do these amendments align with the constitutional provisions related to religious freedom and minority rights? [250 words]