For Prelims: Waqf Board, Central Waqf Council, Freedom of Religion, Waqf Act, For Mains: GS – II Issues related to Fundamental rights(Article 25), Secularism, Social Justice and Governance. |
Context:
Recently, to enhance accountability and transparency in the functioning of Waqf boards, Parliament has introduced an amendment to the Waqf Act, of 1995.
The suggested amendments aim to substantially reform the law by strengthening the Centre’s regulatory powers over waqf properties and, for the first time, allowing non-Muslim members to be included in Waqf Boards.
The draft legislation, proposed to be renamed the Waqf Act, 1995 to Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2024.
What is Waqf?
In the context of Islamic law, waqf pertains to property that is consecrated to God for religious and charitable purposes.
This includes any movable or immovable property set aside for the public good, representing an act of piety that enables Muslims to continue their charitable contributions beyond their lifetime.
A waqf can be established through a formal deed or instrument, or a property may be recognized as waqf if it has been used for religious or charitable purposes over a significant period.
Additionally, non-Muslims are permitted to create a waqf, provided its objectives align with Islamic principles.
History of Waqf in India:
- India has had a legal framework for the governance of Waqfs since the Mussalman Waqf Validating Act of 1913.
- This was followed by the Mussalman Wakf Act of 1923. After Independence, the Central Waqf Act of 1954 was enacted, which was ultimately replaced by the Waqf Act of 1995.
- In 2013, the Act was amended to empower the Waqf Board to designate properties as ‘Waqf Property.’
- Amended in 2013, the Waqf Act of 1995 now includes a provision for a prison term of up to two years for encroaching on Waqf property, as well as a clear prohibition against the sale, gift, exchange, mortgage, or transfer of Waqf property.
Major Provisions and Institutional Structure as Provided by the Waqf Act, 1995:
Survey Commissioner :
The Waqf Act allows for the appointment of a survey commissioner. The commissioner is responsible for maintaining a list of all Waqf properties through local investigations, summoning witnesses, and requisitioning public documents.
Mutawalli (caretaker) :
- The Act establishes the role of a Mutawalli (caretaker), who serves as the supervisor of the Waqf properties.
Management of Waqf Properties:
- Waqf properties are managed in a way that is similar to how properties under Trusts are managed under the Indian Trusts Act, of 1882.
Waqf Boards:
- It is a body under the state government. It works as a custodian for Waqf properties across the state.
- In most states, there are distinct Waqf Boards for the Shia and Sunni communities. Nearly all major mosques in the country are classified as Waqf properties and are managed by the state’s Waqf Board.
Composition :
A Waqf Board is led by a chairperson.
Members-
- One or two nominees from the state government.
- Muslim legislators and parliamentarians.
- Muslim members of the state Bar Council.
- Recognized scholars of Islamic theology.
- Mutawallis of waqfs
Powers and Functions:
– Managing Waqf properties and implementing measures to recover any lost properties of a Waqf.
– Approving the transfer of immovable property belonging to a Waqf through sale, gift, mortgage, exchange, or lease. However, such approval will only be granted if at least two-thirds of the Waqf Board members vote in favor of the transaction.
Central Waqf Council (CWC):
In 1964, the Central Waqf Council (CWC) was set up to manage and guide the Waqf Boards at the state level across India.
Functions:
- Provide Guidance to the Central, and State Governments, and Waqf boards on property management.
- It can require boards to give information on their performance, including financial records and other reports.
Waqf Tribunal:
The Waqf Act provided for a Waqf tribunal to be constituted by the state governments to resolve disputes related to Waqf properties in India. Under Section 6 of the Waqf Act 1995, the tribunal’s decision is considered final in disputes concerning a property’s status as Waqf.
Composition:
It comprises three members–
- The chairperson must be a state judicial officer with a rank no lower than that of a District, Sessions, or Civil Judge.
- An officer from the state civil services.
- An individual with expertise in Muslim law and jurisprudence.
Amendments in Waqf Act (Amendment Bill) 2024:
- The meaning of ‘waqf’ has been revised, allowing only property owners who have adhered to Islam for at least five years to create ‘waqf’ properties through the execution of formal deeds.
- Eliminates the concept of ‘waqf by use,’ which allows a property to be classified as waqf based on its usage.
- To prevent any fraudulent waqf claims, the Bill prohibits any government property identified or declared as waqf property, before or after the commencement of this Act, to be recognised as waqf property.
- Under the Bill, widows, divorced women, and orphans are permitted to be beneficiaries of the proceeds derived from waqf assets.
- The duty of surveying waqf properties, which was previously handled by survey commissioners under the 1995 Act, will now be assigned to district collectors or officers of equivalent rank.
- Centralised registration system – All information about waqf properties must be uploaded to the portal within six months of the new law’s enactment.
- The bill removes Section 40, which previously empowered waqf tribunals to decide if a property qualifies as waqf. Instead, it appoints the district collector as the final authority in these matters.
- The Bill proposed inclusion of non-Muslims in key waqf institutions — the Central Waqf Council, State Waqf Boards, and waqf tribunals.
- According to the Bill, the Centre is granted 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 a designated Central Government officer.
- Under the proposed law, courts can step in to resolve waqf disputes. It nullifies the finality of waqf tribunal decisions, allowing dissatisfied parties to appeal directly to the appropriate High Court.
Criticism of the Waqf (Amendment) Bill 2024:
- Violation of Religious Rights– Critics argue that the bill infringes upon the freedom of religion as provided by Article 25 and the autonomy of the Muslim community to manage their own religious affairs.
- Increased Government Control- The proposed amendments grant greater powers to the government over Waqf properties, including the involvement of district collectors in property disputes. There are worries that this could result in bureaucratic delays and possible overreach by the judiciary and executive branches.
- Inclusion of Non-Muslims in Waqf Boards- Critics argue that the inclusion of non-muslims undermines the integrity of these religious bodies.
- Increased Dispute Potential – The removal of authority from the waqf tribunal and its transfer to district collectors may result in more disputes regarding waqf properties. Critics contend that this could complicate the resolution process and leave properties vulnerable to additional legal challenges.
Way Forward:
- Sufficient Deliberation in the JPC – The government should make an effort to address the concerns regarding the controversial provisions in the Waqf Amendment Bill.
- Broader Consultation- The government should engage in extensive consultations with various stakeholders, including Muslim community leaders, legal experts, and civil society organizations.
- Outreach Campaigns – Initiating public awareness campaigns concerning the Waqf system and the proposed changes can help address misconceptions and educate the community about their rights and obligations under the new framework.
Conclusion:
The Waqf (Amendment) Bill, 2024, bolsters the management and transparency of waqf properties in India. This amendment seeks to protect the integrity of waqf while fostering social welfare and economic progress, potentially leading to greater trust and community engagement.
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