Waqf Amendment Bill, 2024: A Threat to Religious Autonomy?

By Madiya Mushtaq

The term waqf, in its literal sense, means “to enclose”, “to block” or “to fix”. In legal definition, it is the permanent dedication of property for pious purposes. Any property, whether movable or immovable, that has been permanently devoted for religious, pious, or charitable purposes as recognized by Islamic law is referred to as waqf property under the Waqf Act, 1995. Such property is dedicated by a Muslim person or group, and after it is proclaimed waqf, it is thought to be irreversibly and eternally in God’s possession, with its profits used to support the general welfare or particular religious objectives. The Waqf properties are managed by Mutawallis. According to a report, the Waqf Board manages 8.7 lakh properties, in around 10 lakh acres, with a value of around 1 lakh crores.

Why was Waqf Act, 1995 passed?

In response to the increasing demand for a more complete and stronger legal framework for the administration of waqf properties—which, according to Islamic law, are set aside for charitable, educational, and religious purposes—the Waqf Act, 1995 was passed in India. The administration of waqf properties was beset by corruption, incompetence, and inefficiency prior to the legislation.

The Waqf Act, 1995 was passed with the following main objectives:

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to offer improved waqf administration and management, including for waqf properties and other associated matters.
to create and support the efficient operation of State Waqf Boards and the Central Waqf Council, which will also advise the State and Central Governments about the management of waqf.
Shared distribution of power between waqf boards and the chief executive officer.
To appoint an executive officer to the Waqfs, whose performance is not satisfactory and the income is above 5 lakhs or above.
A regulatory/judicial framework related to the disputes of Waqf.
To overlook the powers, functions and duties of mutawallis.
The alienations of the Waqf property was made challenging.
To undertake surveys by designating a Survey Commissioner and the number of Additional or Assistant Survey Commissioners that the State deems necessary in accordance with Waqf Act, 1995, Chapter II, Section 4.
to improve the waqf’s financial standing for management. A mutawalli’s board contribution has increased from 6% to 7%.
to eradicate intrusions from waqf in accordance with Section 54 of the statute.
creating the waqf maintenance budget for the upcoming fiscal year while overseen directly by the board.
to keep records and to carry out record inspections.
to achieve national uniformity in the waqf administration process.

The Waqf Amendment, 2013:

The management and control of waqf properties in India underwent a number of important modifications brought about by the waqf (Amendment) Act, 2013. These are a few of the significant changes:

Council of Central Waqf: The Central Waqf Council was created by the Act to supervise State Waqf Board operations and provide consistency amongst them.
State Waqf Boards: The Act placed a strong emphasis on the establishment of State Waqf Boards in order to efficiently manage waqf properties at the state level. These boards now have additional authority to file lawsuits to stop encroachment and improper usage of waqf properties.
Audit of Waqf Properties: In order to guarantee openness and appropriate administration, the amendment required periodical audits of waqf properties.
Dispute Resolution: It established a tribunal to handle disputes pertaining to waqf properties and offered a procedure for resolving them.
Management and Accountability: By establishing rules for the management of waqf properties and guaranteeing that the monies are used for the appropriate purposes, the Act aimed to increase the accountability of waqf management.
Transparency procedures: It instituted procedures, such as the need to keep public records and make information available to the public, to promote transparency in the management of waqf properties.
Waqf Amendment Bill, 2022:

Presented in the Indian Parliament, the Waqf (Amendment) Bill, 2022, brought about a number of significant updates and improvements to the waqf property administration system. The bill sought to provide better governance and address a number of concerns pertaining to the administration of waqf properties.

Enhancement of the Central Waqf Council (CWC): The bill suggested enhancing the Central Waqf Council’s responsibilities in order to guarantee better supervision and cooperation between the Central and State waqf boards. The CWC would be able to oversee State waqf boards and guarantee consistency in their operations with more authority.
Waqf Tribunal: The National Waqf Tribunal was to be established under the bill in order to settle disputes about waqf properties. In order to address matters involving waqf property management and encroachments, this tribunal would act as a specialized authority.
Enhanced Accountability and Transparency: It suggested steps to improve accountability and transparency in the administration of waqf properties, such as mandating frequent reporting and financial audits of the operations and financial statements of waqf boards. The bill contained clauses pertaining to the upkeep and updating of public records pertaining to waqf properties.
Management and Administration: By establishing more precise rules and regulations for the management of waqf properties, the measure sought to simplify the administration of these estates. It suggested more stringent guidelines for the selection of mutawallis, or waqf property managers, and provided a clearer description of their duties.
Property Development: To ensure that waqf properties are used optimally for the welfare of the society and to generate money, the bill encouraged the development and use of waqf properties.
Encroachment and Recovery: Mechanisms for reclaiming encroached land and property were added in the provisions aimed at strengthening the measures against encroachment on waqf properties.
State Waqf Boards: The bill included improvements to property management procedures and enhanced legal authority to prosecute infractions in order to enhance the performance of State waqf boards.
By establishing stronger administrative and legal frameworks, the Waqf (Amendment) Bill, 2022 sought to address long-standing problems with the management of waqf holdings and enhance the Waqf Act’s overall efficacy.

The Waqf Amendment Bill, 2024

The Waqf Amendment Bill, 2024, poses a significant intrusion on the Muslim community’s fundamental rights. The measure threatens the community’s right to administer its religious and philanthropic assets by consolidating authority over waqf properties and weakening the independence of traditional Islamic institutions. The Central Waqf Council and the Board of Auqaf’s religious character is upset by the appointment of non-Muslim members, which may jeopardize the administration of waqf properties in line with Islamic law. In addition, the Collector’s involvement in validating waqf properties along with the necessary public notice time for land record updates pose bureaucratic obstacles that may cause delays, conflicts, or even the unjust confiscation of waqf holdings.

Concerns against the state’s excessive involvement in religious matters are raised by these laws, which violate the community’s right to self-governance and religious freedom. Under the pretense of openness and inclusivity, the law runs the risk of undermining the waqf, an ancient Islamic institution, and infringing upon the fundamental rights of the Muslim community.

Below mentioned is the comparison between the Waqf Act, 1995 and the proposed amendment bill, 2024. In the form a chart, the changes are detailed and explained:

Sections	Current Waqf Act	Proposed changes in Waqf Amendment Bill, 2024	Explanation of changes
Section 3(r):Definition of Waqf	“Waqf” means the permanent dedication by any person of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable.	“Waqf” now requires the person to have practiced Islam for at least five years and have ownership of the property being dedicated.	Stricter criteria for who can create a Waqf, ensuring the person is a practicing Muslim for a significant period and owns the property being dedicated.
Section 3(r)(iv): Waqf-alal-aulad	Allows the creation of Waqf-alal-aulad (endowment for the family) under Muslim law.	Income from Waqf-alal-aulad, when succession fails, must be spent on education, welfare, and maintenance of widows, divorced women, and orphans, as prescribed by the Central Government.	Provides clarity on the usage of income from Waqf-alal-aulad when there is no heir, ensuring it serves social welfare purposes.
Section 3(da): Position of Collector	Not present in the current Waqf Act	Introduces the position of Collector, who will exercise powers previously held by the Auqaf Board.	Establishes a new authority (Collector) to oversee certain functions, possibly to streamline administration and increase government oversight.
Section 3A: Conditions for Creating Waqf	Not present in the current Waqf Act	1. Only a lawful owner can create a Waqf. 2. Creation of Waqf-alal-aulad must not deny inheritance rights of heirs, including women.	Ensures that Waqf creation is legally valid and protects inheritance rights, particularly those of women, aligning with principles of justice and equity.
Section 3B: Filing of Waqf Details	Not present in the current Waqf Act.	Requires all Waqfs registered before 2024 to file details on a government portal, including deed, income, pending cases, etc.	Enhances transparency and accountability by mandating the digitization and public availability of Waqf details through a centralized portal.
Section 3C: Wrongful Declaration of Waqf	Not present in the current Waqf Act	Government property identified or declared as Waqf shall not be treated as Waqf unless confirmed by the Collector.	Protects government property from being wrongfully claimed as Waqf, ensuring due process through investigation and reporting by the Collector.
Section 3(ka): Waqf Asset Management System	Not present in the current Waqf Act.	Defines a centralized system for Waqf registration, accounts, audit, and other details, as prescribed by the Central Government.	Introduces a digital system for better management and oversight of Waqf properties, ensuring consistency and ease of access for monitoring purposes.
Section 4: Preliminary Survey of Auqaf	The State government must appoint a Survey Commissioner to conduct a survey of auqaf in the State.	The position of Survey Commissioner is replaced by the Collector, who shall exercise jurisdiction over the survey of auqaf. The definition of Waqf now includes ‘Aghakhani waqf’ and ‘Bohra waqf’.	Shifts the responsibility from a specialized Survey Commissioner to a government-appointed Collector, potentially centralizing authority. Expands the definition to include more types of waqf.
Section 5: Publication of List of Auqaf	After the Survey Commissioner’s report is examined by the Waqf Board, it is forwarded to the State government for publication in the official gazette. The revenue authorities update the land records accordingly.	Before updating land revenue records, revenue authorities must issue a 90-day public notice in two daily newspapers, one of which must be in the regional language, to allow affected persons an opportunity to be heard.	Introduces a mandatory public notice period, ensuring transparency and providing an opportunity for the public to challenge the listing before land records are updated.
Section 6: Disputes Regarding Auqaf	Disputes regarding whether a property is waqf or whether it is a Shia or Sunni waqf are decided by a Tribunal consisting of three members (civil judge, state civil services officer, and an expert in Muslim law). The Tribunal’s decision is final, and no suit can be instituted after one year from the publication of the list of auqaf.	The decision of the Tribunal is not final. A suit can be instituted within two years from the publication of the list of auqaf, with provisions for filing even after two years if sufficient cause is shown. Section 40, which allowed the Waqf Board to collect information regarding any property believed to be waqf, is omitted	Extends the timeframe for challenging the Tribunal’s decisions and allows for more flexibility in filing suits. The omission of Section 40 reduces the Waqf Board’s proactive role in identifying waqf properties.
Section 9: Constitution of Central Waqf Council	The Central Government appoints members, including “at least two members to be women.”	Only two women members may be appointed among the specified list, and two non-Muslim members shall also be appointed.	Reduces the mandatory inclusion of women from “at least two” to “only two,” and includes non-Muslim members to ensure broader representation
Section 14: Composition of Board of Auqaf	The composition includes women members, with a general representation of Muslim communities.	Only two women members shall be appointed, and two non-Muslim members will be included. Also, one member each from Shia, Sunni, OBC Muslims, and one from Bohra and Aghakhani if they have functional auqaf in the State.	Reduces the number of women members, introduces non-Muslim members, and ensures representation from various Muslim sects and communities, including Bohra and Aghakhani.
Section 36: Registration of Auqaf	Registration of Auqaf was prescribed by the regulations provided by the Auqaf Board.	No waqf shall be created without the execution of a waqf deed. Registration must be done through an online portal and database. The Collector must inquire into the genuineness of the application.	Mandates the execution of a waqf deed for registration, introduces an online system for transparency, and requires the Collector to verify the property’s status before registration.
Section 47: Audit of Accounts of Auqaf	Accounts of auqaf are audited by an auditor appointed by the Auqaf Board, with the possibility of being audited by the State Government.	Auditors must now be from a panel prepared by the State Government. The Central Government can direct an audit by an auditor appointed by the Comptroller and Auditor-General of India and order the publication of the audit report	Enhances the oversight and accountability of waqf accounts by involving state-approved auditors and allowing the Central Government to intervene directly in the audit process.

Conclusion

Concerns over the Waqf Amendment Bill, 2024’s potential effects on the Muslim community’s fundamental rights are warranted because it would significantly alter the way waqf properties are governed and managed. The bill could jeopardize the Central Waqf Council’s and the Board of Auqaf’s ability to govern waqf properties in accordance with Islamic law by allowing non-Muslim members into historically Islamic organizations. The measure also requires a waqf deed to be executed, moves the registration procedure online, and includes the Collector in the waqf property verification process.

The goal of these modifications is to increase transparency, but they run the risk of putting up bureaucratic obstacles that slow down the registration process and cause conflicts over properties that can be mistakenly designated as belonging to the government. Moreover, the waqf boards’ autonomy is diminished by the centralization of control brought about by the consolidation of audit tasks under state-approved panels and the Comptroller and Auditor-General of India. This centralization violates the community’s right to self-governance and religious freedom along with the additional bureaucratic restrictions.

The bill’s provisions directly challenge the community’s fundamental rights and set a worrying precedent for the loss of religious freedom by upsetting the management of waqf properties and undermining the autonomy of religious institutions. As such, a thorough reassessment of the bill is necessary to protect and uphold the rights and customs of the Muslim community.

Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer

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