WAQF ACT
1. Context
On August 8 2024, the Union government introduced a Bill in the Lok Sabha to amend the 1995 Waqf Act (1995 Act). The proposed amendments seek to significantly reform the law by enhancing the Centre’s regulatory authority over waqf properties and, for the first time, permitting the inclusion of non-Muslim members in Waqf Boards. The draft legislation, proposed to be renamed the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2024, is heralded by the government as a comprehensive overhaul aimed at enhancing “the efficiency of the administration and management of the waqf properties
2. India's Waqf Law
- In Islamic law, a waqf refers to property dedicated to God for religious or charitable purposes. This can include any type of property, either movable or immovable, that is set aside for the benefit of the public, serving as an act of piety that enables Muslims to continue their charitable contributions even after death.
- A waqf can be created through a formal document, or property may be recognized as waqf if it has been consistently used for religious or charitable purposes over time. The income generated from such properties is usually directed towards the upkeep of mosques, funding educational institutions, or aiding the needy.
- Once a property is designated as waqf, it cannot be inherited, sold, or given away. Non-Muslims are also permitted to establish a waqf, provided the purpose aligns with Islamic values.
- In India, waqfs are governed by the 1995 Act. The identification and delineation of waqf properties are carried out by a survey conducted by the State government.
- A survey commissioner, appointed under this Act, identifies these properties through local inquiries, witness statements, and examination of public records. Once identified, the properties are listed in the State’s official gazette, and a record is maintained by the State Waqf Board.
- Each waqf is managed by a mutawalli (caretaker) responsible for its administration. While waqfs are similar to trusts under the Indian Trusts Act of 1882, unlike trusts, waqfs cannot be dissolved by a Board
3. Functions and role of Waqf board
- The 1995 Act creates Waqf Boards in each State, responsible for overseeing the management of waqf properties within their respective areas. These Boards are legally recognized entities, enabling them to initiate or face legal action.
- Each State Waqf Board is led by a chairperson and includes one or two representatives from the State government, Muslim legislators, acknowledged Islamic scholars, and mutawallis (caretakers) of the waqfs.
- The Act also requires the appointment of a full-time Chief Executive Officer for each Board, who must be a practicing Muslim and hold a rank equivalent to at least a Deputy Secretary in the State government.
- The Waqf Board is empowered to manage waqf properties and undertake actions to reclaim lost assets. It also has the authority to approve the transfer of immovable waqf properties through sale, gift, mortgage, exchange, or lease, but such transactions require the consent of at least two-thirds of the Board members.
- The 2013 amendments to the 1995 Act further enhanced the Board's powers, making it almost impossible to sell waqf properties, as neither the mutawalli nor the Board is permitted to sell such property.
- In addition to the State Waqf Boards, the legislation also establishes the Central Waqf Council, a national advisory body under the Ministry of Minority Affairs.
- This Council ensures consistent administration of waqf properties across the country and is chaired by the Union Minister of Minority Affairs.
- The Council also advises the Union government on waqf-related matters, including policy formulation, implementation of waqf laws, and the resolution of inter-state disputes
4. Proposed Changes in the bill
- The definition of ‘waqf’ has been revised under the new Bill. Now, only lawful property owners who have practiced Islam for at least five years are permitted to establish waqf properties through formal deeds.
- This change eliminates the concept of ‘waqf by use,’ which allowed a property to be considered waqf based on its usage, even if the original deed was contested. Historically, waqf properties were often designated orally until formal documentation became more common.
- To prevent fraudulent claims of waqf status, the Bill stipulates that any government property identified or declared as waqf, either before or after the enactment of this Act, will not be recognized as waqf property. The law also allows widows, divorced women, and orphans to benefit from waqf proceeds.
- The responsibility for surveying waqf properties, previously handled by survey commissioners under the 1995 Act, will now be transferred to district collectors or officers of equivalent rank under the new Bill.
- To enhance the accuracy of waqf property records, the Bill proposes the establishment of a centralized registration system. All information regarding waqf properties must be uploaded to this portal within six months of the law’s enactment, and any new waqf property registrations must be submitted through this portal to the Waqf Boards.
- Additionally, the Bill removes section 40, which previously allowed waqf tribunals to determine whether a property qualifies as waqf. Instead, the district collector is now designated as the final authority on such matters.
- Once a decision is made, the collector must update the revenue records and report to the State government. Importantly, the Bill states that the disputed property cannot be treated as waqf property until the collector submits a final report, meaning the Waqf Board cannot take control of the land until the government resolves the issue.
- One of the most debated provisions in the Bill is the proposal to include non-Muslims in key waqf institutions, such as the Central Waqf Council, State Waqf Boards, and waqf tribunals.
- The Bill authorizes the Centre to appoint three Members of Parliament (two from the Lok Sabha and one from the Rajya Sabha) to the Central Waqf Council without requiring them to be Muslims. Previously, under the 1995 Act, these MPs had to be from the Muslim community.
- The new Bill also mandates that State Waqf Boards must include two non-Muslims and two women as members. The composition of waqf tribunals has been altered from a three-member body to a two-member body, consisting of a district judge and an officer of joint secretary rank to the State government.
- The proposed law requires tribunals to resolve disputes within six months, with a possible six-month extension.
- Furthermore, the Bill gives the Centre the authority 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.”
- The Waqf Boards are required to audit their accounts annually, selecting auditors from a panel formed by the State governments. Mutawallis who fail to maintain proper accounts will face penalties.
- The proposed law also allows courts to intervene in waqf disputes by removing the finality of waqf tribunal decisions, enabling aggrieved parties to appeal directly to the relevant High Court. This measure aims to increase judicial oversight and reduce instances of arbitrary power exercised by Waqf Boards or tribunals
5. Way forward
Following its introduction in Parliament, the Bill was sent to a joint parliamentary committee for further examination after the Congress-led INDIA bloc opposed the proposed legislation in its current form.
In March of the previous year, the Union government informed the Delhi High Court that nearly 120 petitions challenging various provisions of the 1995 Act are currently pending in courts across the country
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For Prelims: Waqf board, Amendment process in Parliament
For Mains: GS II - Indian Governance
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Source: The Hindu
