Author Details:

ANJALI BARMOLA

3rd Year, BA LLB

South Calcutta Law College, Kolkata

INTRODUCTION

Islam, as a religion, is built on 5 pillars i.e. Shahada (Faith), Salah (Prayer), Sawm (Fasting), Hajj (Pilgrimage), and Zakat (Almsgiving). It can be appropriately inferred that Charity is very fundamental to the followers of Islam and the extension of that is the practice of Waqf. The origin of Wakf can be traced back to the texts of one of the Hadiths where the Prophet said, “If you like you can give the land as endowment and give its fruits in charity.” This practice continued with the generous acts of Rulers for a long time and became integral to Islam. Theologically, Waqf refers to the detention of ownership of land to perpetuity in the name of Allah for charitable acts recognized by Islam.

With the development of Islamic jurisprudence, the ‘Waqf’ can be defined as ‘the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable’[i], and ‘waqif’ is a ‘person making such dedication’[ii]. A ‘mutawalli’ is a person appointed to manage the property and to supervise the use of it in accordance with the object of the waqf. Waqf plays a very crucial role in influencing the social and economic life of the community and for managing that a statutory law of 1995 exists. On 8^th August 2024, an amendment bill in Lok Sabha was introduced to bring in the changes in the existing law which was letter referred to a Joint Parliamentary Committee on the very same day. The amendment bill proposes several changes in the old age setup to manage Waqf. It needs to be carefully analysed to understand the multifaceted approach by the government to address the shortcomings in the existing laws and the probable consequences of it. This article does the same but before that one must understand the journey of Waqf becoming a regularised act from a charitable endowment.  

HISTORICAL EVOLUTION

The evolution of the statutory administration of wakf can be traced back to the British non-interference policy regarding personal laws in India under British rule. However, after facing maladministration issues in private endowments, the enactment of the Waqf Validating Act of 1913 marked the end of non-interference and brought it under the ambit of statutory regulation. After that, the Mussalman Waqf Act of 1913 was passed to manage accounts for religion-specific endowments.

In the post-independence era, The Wakf Act of 1954 was a significant one in establishing Boards with the power to administer and account for the Wakf properties. At the stage of finality, correcting the flaws in the previous legislation, The Wakf Act of 1995 came as the central piece of legislation and to further improve the management and administration of waqf properties the Wakf (Amendment) Act, 2013 was passed granting more authority to Wakf Boards and establishing Waqf Tribunals for dispute resolution.

COMPARATIVE STUDY

The principal act i.e. The Waqf Act, 1995[iii] is now retitled as The Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995[iv] which signifies the widened scope of the administration and dispute redressal of Waqf properties. Along with the renaming of the statute, there are other prominent changes in the proposed bill in comparison to the existing law, which are discussed in detail as follows:  

A. Redefining Waqf: The Act defines Waqf as ‘the permanent dedication by any person, of any movable or immovable property’ including a wakf by user and a waqf-alal-aulad, when the line of succession ends, dedicated for purposes recognized by Muslim law as pious[v]. The Bill constricts the competency of any person making a wakf to a person who has been practicing Islam for at least five years. It also takes away the recognition of ‘Waqf by user’ and to a waqf-alal-aulad adds the property dedicated to the maintenance of widow, divorced woman, and orphan along with the purposes recognized by the Muslim law.

B. Government property and its Determination: The new bill clearly states that any government property identified or declared as waqf will not be treated as a waqf anymore. If a question arises on government property, the alleged contentious property will be referred to the Collector for the inquiry and that property cannot be treated as Waqf before the Collector submits such report. The principal act did not address the waqf claim on government properties, and this amendment clarifies this, bringing the inquiry under the ambit of the Collector rather than the Waqf Tribunal.    

C. Survey of auqaf: In the principal act theprovisions for a Preliminary survey of auqaf are laid out where a Survey Commissioner and Additional Survey Commissioners for the State are appointed to hold an inquiry and submit the report to the State government and while making any inquiry he is vested with the same power as a civil court under the Code of Civil Procedure of 1908 in respect to summoning and examining any witness, requiring the discovery and production of any document, requisitioning any public record from any court or office, etc.[vi]

With the proposed amendment the Survey of Auqaf will be transferred to the Collector and he will conduct the survey in accordance with the revenue laws of the State of the respective state and all such power to conduct the survey is to be transferred to the Collector from the Survey Commissioner.

D. Central Waqf Council: The Act provided for the establishment and constitution of the Central Waqf Council for the purpose of advising the Central Government, the State Governments, and the Boards regarding its working and management of waqf It consists of the Union Minister in-charge Waqf as an ex-officio Chairperson and the rest of the council members to be Muslim where at least 2 must be women.

 The Bill alters the composition of the council it retains the position of Union minister as the ex-officio chairperson and persons representing Muslim organizations and mutawallis, Chairpersons of three Boards, eminent scholars in Muslim law need to be Muslim along with two women members among them, whereas the rest can be non-muslim as well. It explicitly mandates for at least two members to be non-Muslims in the council.

E. Wakf Boards: The Act established a body corporate having perpetual succession and a common seal with power to acquire and hold property by the state government called as Wakf Board. It consisted of a chairperson and Muslim members of Parliament from the state, state legislation, the Bar Council, mutawallis, a professional in town planning, recognized Islamic scholars, an officer of state government, by both, elected and nominated. Among all the members, at least two Members appointed on the Board must be women.

The Bill restricts an upper limit of 11 members, all nominated, in the council allowing one mutawalli, one eminent scholar of Islamic theology, and elected members from the Municipalities or Panchayats, where at least two must be women, to be Muslim and relaxing the mandate for the rest of the board members to be Muslim. It requires two of the total members of the Board appointed, to be non-Muslim. It adds to the requirement for at least one member each from Shia, Sunni, and other backward classes among Muslim Communities. The board should also have a nominated member from Bohra and Aghakhani Communities, in case they have functional auqaf in the State. The Bill also allows for the Chief Executive Officer of the Board to be non-muslim which was strictly stated as a Muslim member of the Board in the Act.

F. Registration of Waqf: The Act states that every Waqf should be registered at the office of the Board and the Bill adds to this that no Waqf can be created any further without executing a Waqf deed and the application for registration should be made to the Board through the portal and database. After receiving the application, the Act empowered the Board to make an inquiry with respect to its validity but the Bill tasks it to the Collector to whom the Board should transfer such application to inquire and after the registration, the certificate should be issued through the portal and the database.

G. Audit of accounts: The Act mandated every mutawalli to keep regular accounts that are to be furnished to the Board every year.The Act stated those accounts to be audited by an auditor appointed by the Board whereas the Bill adds to it, the auditor appointed by the Board “from out of the panel of auditors prepared by the State Government”. The act limited the power to audit the accounts of a Waqf at any time to the State government by the State Examiner of Local Funds, the Bill extends it to the Central Government by an auditor appointed by the Comptroller and Auditor-General of India.

H. Waqf Tribunals: The Act constituted Tribunals for dispute resolution and to answer any question arising out of the disputed waqf property.It was for the aggrieved to approach the Tribunalfor grievance redressal and the bill unlocked the option of approaching the high court in case of absence of a Tribunal or when it is not functioning. The Act as a statute stood by the finality of the decision by the Tribunal, the Bill alters this stand by allowing the appeals to the High Court by any person who is aggrieved by the order of the Tribunal within a reasonable period of ninety days.

The Act constituted a Tribunal of one member of the State Judicial Service as the Chairman, one officer from the State Civil Services, and one with a background in Muslim law and jurisprudence. But the act did away with the member with the knowledge of Muslim law and jurisprudence and also even in the absence of the officer the Chairman is allowed to act as a Tribunal.

I. Representation of Bohra and Agakhani: The principal act was moot on the proportional representation of the Bohra and Agakhani communities. The Bill started with defining ‘Agakhani Waqf’ and ‘Bohra Waqf’, then continued to allow for separate waqf boards for Aghakhanis and Bohras when the Act only allowed for a separate board for Shia and Sunnis. The theme continues throughout the whole of the amended Bill to give equal representation to Bohra and Agakhani when the Act did not emphasize as it did with Shia and Sunni sects.

CONSEQUENCES

The proposed changes aimed to address all the lacunae in the existing laws to manage Waqf properties and with a detailed comparison drawn out above it can have varied implications, considering the dynamic aspect of the nature of Waqf and the changes that can be noted in every aspect of the chain of management. These are stated as follows:

1. Rights of the Minorities: The constitution of India guarantees freedom to manage religious affairs[vii] ‘to manage its own affairs in matters of religion’. It is directly hampered when the requirement to appoint Muslim members to the bodies managing a religious affair such as Waqf, like the Central Wakf Council and State Waqf Boards is altered and the mandate to at least have two non-Muslim members is introduced. This is a matter of grave concern especially when compared to other charitable trusts which require members of its faith only[viii]. It also alters the composition of the Tribunal to the disadvantage of Muslim representation by removing a person with the knowledge of Muslim jurisprudence, who inculcated religious sensitivity in the tribunal. But now with changed circumstances with no person with knowledge of the specific dispute matters that the Tribunal deals with, it righteously hinders justice delivery.  

The induction of eligibility to make a Wakf, one has to be practicing Islam for 5 years, creates a discriminatory standard among the Muslims who are new to Islam compared to others without a rationale to the nexus for which it is done.This is the violation of another Fundamental Right i.e. Article 14[ix] that prohibits any unreasonable discrimination.

• Centralisation: After careful analysis of all the changes in the proposed law, it can be said that the centralization of power is done in a very subtle way where the autonomy of Waqf Council and Boards is curtailed and is given to the central government to frame provisions and decide on important matters. While the legislative intent of these changes is to address the concerns of corruption and mismanagement present in Waqf Boards, it may lead to an abuse of power at the centre to dictate religious affairs in a state that guarantees religious autonomy to every citizen. The change where the Survey Commissioner is replaced with Collector, who will look into the compliance according to the revenue laws and appeal to the courts, aims at unburdening the work that is piled up in the present cases, but it must be noted that civil officers are already drowning with the workload, hence this can lead to more delays.    

• Diversification: The proposed changes have acknowledged the nuances of diversity existing in the Muslim community and provided for separate Boards for Bohra and Agakhani sects. The opposing view is that it may lead to further divisions in an already divided among Shia and Sunni. But the

• Robust framework: The changes aim to build a robust framework in procedural and redressal format to serve the purpose better, removing all the inefficiencies in the existing system to achieve the same the statute is reframed in a more comprehensible manner which will even lead to minimizing disputes.

Adding to the statute the provisions like one who is not the lawful owner cannot make the Wakf and a waqf-alal-aulad must not result in the denial of inheritance rights, protecting the rights of the individuals will lead to fewer disputes. The effort to make the system more digitized by filing details on the portal and database will lead to efficient data management. To address the issue of uninterested Mutawallis disqualification of mutawalli is added along with the duties. Most prominently curbing the finality of a decision by the Tribunals and by way of appeals, the amended statute upholds the Natural Justice system.  

• Financial Accountability: To increase financial accountability by tackling the continuing issue of corruption and mismanagement the audit can be ordered by the center which although follows the scheme of Centralisation also allows for a better supervisory mechanism.

At last, a natural consequence of the multiple changes in an ancient practice is that it may lose the historical and religious significance attached to Waqf. A charitable deed to endow one’s property to perpetuity for the purpose considered pious in Islam is when regularised in a stringent way with mandatory registration and bureaucratic mistreatment disincentives the whole of the community to practice and propagate faith in a liberated form. 

CONCLUSION

The Waqf is an old institution in the religion of Islam that faces many modern-day difficulties and the fructification of property in the way it is supposed to in a charitable way becomes a tedious task for the administrators. The laws and the regulatory bodies overseas the same is evolving and accommodating the challenges that they face with the changing times. But we must not lose sight of the goal which is to achieve public welfare and respect religious sentiments attached to the practice. The endeavour to bring in change and comparative success depends on the fine balance of power that a state can dispel over a religious affair as a form of the regulatory body so that it aligns with our scheme of constitution i.e. a secular welfare state. The answer to this becomes even more controversial when the question is of managing the Waqf Board, which is the third largest landowner in India.[x] This intertwines the social, religious, and economic aspects of the properties endowed, that to realise its true potential the state plays its role in bringing the required change in laws to support development while not infringing on the rights of the minorities.

This is achievable only when all the stakeholders are made part of decision making and the public plays an active role in drawing the comparison and analyzing the far-reaching impacts it can have on the life of the society and the growth of the nation as a whole. It must not be forgotten that Waqf is inherently religious in nature and any conflicting changes must be deliberated to uphold constitutional values, which will decide the future course of our nation.

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[i] Waqf Act of 1995, § 3(r) (India).

[ii] Id.

[iii] The Waqf Act, No. 43 of 1995 (India).

[iv] Waqf (Amendment) Bill, 2024, Bill No. 109 of 2024, introduced in Lok Sabha on August 8, 2024 (India).

[v] Waqf Act of 1995, § 3(r) (India).

[vi] The Code of Civil Procedure, 1908, Act No. 5 of 1908 (India).

[vii] India Const. art. 26

[viii] Waqf (Amendment) Bill, 2024, Bill No. 109 of 2024, PRS Legislative Research (India), https://prsindia.org/billtrack/the-waqf-amendment-bill-2024  (last visited Nov. 27, 2024)

[ix] India Const. art. 14

[x] Ministry of Minority Affairs, Explainer on Waqf Amendments Bill 2024, (Sept. 13, 2024), https://static.pib.gov.in/WriteReadData/specificdocs/documents/2024/sep/doc2024913394001.pdf