AMENDMENT PROPOSAL FOR THE WAQF ACT

THE LAWWAY WITH LAWYERS JOURNAL

VOLUME:-15  ISSUE NO:- 15 , SEPTEMBER 10 , 2024

ISSN (ONLINE):- 2584-1106

Website: www.the lawway with lawyers.com

Email: thelawwaywithelawyers@gmail.com

Authored By :- Ms. Anmol Tasmiya

AMENDMENT PROPOSAL FOR THE WAQF ACT

ABSTRACT

This article presents a proposal for amending the Waqf Act to address persistent challenges in the administration, governance, and legal oversight of Waqf properties in India. Waqf, being an important institution for managing charitable endowments in Islamic law, often faces issues of mismanagement, lack of accountability, and delayed dispute resolution. The proposed amendments focus on ensuring effective administrative, promoting transparency and enforcing stricter regulatory frameworks. The proposed amendments to the Waqf act, while well-intentioned, raise significant concerns regarding their impact on the autonomy of Waqf institutions and the potential for governmental overreach. Critics argue that increasing regulatory oversight may infringe on the independence of Waqf boards, undermining the religious and charitable nature of these institutions. The push for greater transparency and accountability, though necessary, may lead to excessive bureaucratic interference, complicating the administrative processes and slowing down decision-making. Furthermore, the introduction of stringent penalties and enhanced enforcement mechanisms could create a climate of fear among Waqf managers, discouraging legitimate decision-making due to concerns over repercussions. Finally, the focus on the faster dispute resolution mechanisms through specialized tribunals may sideline traditional systems of conflict resolution and impose a top-down approach that ignores local customs and community concerns. There is also apprehension that such amendments could disproportionately concerns. There is also apprehension that such amendments could disproportionately affect smaller Waqf properties, leading to inequitable treatment. 

KEYWORDS: Politicizing regular Muslim minority, Enforcing stricter regulatory frameworks, Religious right violation and Insufficient minor community consultation.  

INTRODUCTION

On august 8, 2024, the Waqf (Amendment) Bill 2024 was introduced in the Lok Sabha and has since generated a great deal of discussion. In order to strengthen the central government’s regulatory power over waqf holdings and allow non-Muslim members to serve on Waqf Boards, the bill proposes significant changes to the 1995 Waqf Act. The measures has been referred to a joint parliamentary committee for additional review because opposition parties have attacked it was as illegal and an infringement on the rights of the Muslim minority, despite the government’s claims that these reforms will increase efficiency and transparency. 

STATEMENT PROBLEM

The proposed amendments or introduction of a new Waqf Act have sparked significant debate among various stakeholders, with critics raising concerns about potential implications for the management, transparency, and rights related to Waqf properties. The core issues include the increased governmental control over Waqf assets, possible infringement on the autonomy of religious institutions, and the perceived lack of adequate representation for minority communities in the decision- making process. Critics also fear that these reforms could lead to bureaucratic hurdles, inefficiencies, or misuse of Waqf resources, potentially undermining the original intent of the Waqf Institution a charitable and religious endowment. Furthermore, questions regarding accountability, safeguarding historical and cultural heritage, and equitable distribution of resources remain central to the debate.

LITERATURE REVIEW

• LEGAL AND CONSTITUTIONAL CONCERNS

Al-Darwish, M. (2020). Legal frameworks and Waqf Administration: Challenges in the Modern Era. Journal of Islamic Studies, 23(1), 78-99.

One of the major criticisms revolves around the legal and constitutional implications of the proposed Waqf Act. Legal scholars have pointed out that certain provisions in the new law may conflict with existing constitutional frameworks, particularly regarding the protection of religious endowments and the rights of minority communities. In the countries where Islamic law (Sharia) interacts with secular legal frameworks, critics argue that the new act may dilute the religious and charitable essence of Waqf by subjecting it to excessive state control. 

Additionally, some legal experts suggest that the proposed act lacks clarity on the procedural aspects of Waqf Administration. Al-Darwish (2020) notes that the ambiguity in terms of legal definitions and administrative procedures might lead to misinterpretations and inconsistent application of law, which could negatively impact both Waqf beneficiaries and administrators.

• COMPARATIVE PERSPECTIVES

Rahman, H. (2020). Waqf Reform in Malaysia: lessons for other Muslim-Majority Countries. Comparative Islamic Law Journal, 14(2), 110-127.

Several critiques have drawn comparisons between the proposed Waqf Act and similar reforms in other countries. For instance, the experiences of countries like Malaysia and Turkey, which have modernized their Waqf autonomy. However, critics argue that the proposed act fails to adopt the best practices from these examples, particularly in ensuring transparency and accountability while maintaining the charitable and religious essence of Waqf.

In this comparative analysis, Rahman (2020)highlights the success of Malaysia’s Waqf reform balancing state oversight with community involvement, contrasting it with the more centralized and state-controlled approach proposed in the new Waqf Act. He suggests that the failure to learn from these models could result in inefficiencies and the erosion of public trust in Waqf institutions.

OVERVIEW OF WAQF ACT

Definitions and significance of Waqf in Islam

A waqf is an Islamic endowment of property meant to be used for religious or charitable purpose and kept in trust. Under Muslim law, the donor, sometimes referred to as the Waqif, dedicates mobile or immovable assets for a cause that is deemed pious, religious, or philanthropic. Once founded, the ownership of the property is regarded to be passed to God, making it inalienable and insuring its eternal dedication to the intended purpose. In Islamic society, waqf is essential because it gives the general public access to services like healthcare and education and gives communities economic and social empowerment. 

Governance structure for waqfs in India

PRE-COLONIAL GOVERNACE: Prior to colonial rule: Since 1913, the waqfs in India have been formally governed. In 1913, the Waqf Validating Act for Muslims was passed. The Mussalman Wakf Act, 1923, took its place;

POST INDEPENDENCE: following independence, the Central Waqf Act, 1954, was passed to provide regulations for waqfs. The Waqf Act of 1995 eventually took the place of this act. 

WAQF BOARD

The state government oversees this organization. It serves as the state’s custodian for Waqf holdings. The Shia and Sunni populations have distinct Waqf Boards in the majority of states. Nearly all well-known mosques in the nation are Waqf holdings and are governed by the state’s Waqf Board.

FUNCTIONS AND RESPONSIBILITIES OF WAQF BOARDS

According to the Central Waqf Council’s website, the Waqf board advises the central and the sate governments to administration of waqf properties. Its responsibilities are:

• Property management entails overseeing waqf properties, locating lost properties, and obtaining at least two-thirds board permission before accepting transfers.
• Legal Oversight: Offering legal counsel about the defense and restitution of waqf properties as well as the eradication of encroachments.
•  Income Management: Ensuring that waqf property income is used in accordance with donor preferences and Islamic law.
• Supporting mosques, cemeteries, dargahs, schools, hospitals, and other social welfare establishments is an example of religious and social support.
• Welfare and Education Programs: Putting in place initiatives to empower the underprivileged, especially women, and help them enhance their skills

COMPOSITION OF WAQF BOARD:

• A chairperson is in charge of a Waqf Board. 
• Members:

1. One or two state government nominees;
2. Muslim lawmakers and representatives;
3. Muslim members of the state Bar Council;
4. Acknowledged Islamic theological scholars;
5. Mutawallis of Waqfs earning at least Rs 1 lakh a year.

ANALYSIS

THE KEY LEGISLATIVE CHANGES AND DEVELOPMENTS IN THE ADMINISTRATION OF WAQF PROPERTIES IN INDIA THROUGH WAQF ACT

THE WAQF ACT 1954: Waqf has only become more powerful after independence. The Waqf Act of 1954 paved the door for Waqfs to become more centralized. A statutory entity, the Central Waqf Council of India was founded by the Government of
India under the 1954 Waqf Act. Section 9(1) of the Waqf Act, 1954 established numerous state Waqf boards, and this central body is in charge of overseeing their operations. 

THE WAQF ACT 1995: – The Waqf Act became an overriding legislation in 1995 when it was amended to be even more favorable to Muslims. In order to regulate the management of Waqf Properties (Religious Endowments) in India, the Waqf Act, 1995 was passed. It makes provisions for the authority and responsibilities of the Chief Executive Officer, State Waqf Boards, Waqf Council, and mutawalli. The authority and limitations of a Waqf Tribunal, which serves as a substitute for a civil court within its purview, are also outlined in this Act. The Code of Civil Procedure, 1908, mandates that the Waqf Tribunals perform all the duties and powers of a civil court, and they are considered to be such. A tribunal’s ruling is final and enforceable against the parties. There cannot be a lawsuit or other legal action filed in a civil court. putting the rulings of the Waqf Tribunal above those of any civil court.

AMENDMENTS IN 2013: In order to improve the efficiency and transparency of waqf management, certain provisions of the Act were revised in 2013. Nevertheless, during the Act’s implementation, it was believed that the Act had little effect on control over the Waqf. 

THE WAQQF REPEAL BIL, 2022: The aforementioned Waqf Act, 1995 as modified was created with the intention of attaining a more equal structure and treatment of bodies such as waqf and other recognized religious entities founded under similar goal; Introduced on December 8, 2023, in the Rajya Sabha. 

MAJOR PROVISIONS AND INSTITUTIONAL STRUCTURE AS PROVIDED BY THE WAQF ACT

SURVEY COMMISSIONER: A survey commissioner may be appointed in accordance with the waqf statute. The commissioner conducts local inquiries, calls witnesses, and obtains public records in order to keep a list of every Waqf property.
A MUTAWALLI (CARETAKER) is designated by the Act to oversee the Waqf properties in an acting capacity.
MANAGEMENT OF WAQF PROPERTIES: The manner in which waqf properties are administered is comparable to that of how properties under trusts are managed under the Indian Trusts Act, 1882.

THE KEY CHANGES ARE INTRODUCEDD BY THE WAQF AMENDMENT (BILL) 2024

AMENDMENTS TO SECTION 1, 3, 3A, 3B, 3C, 4, 5, 6, 7, 9, 14, 36, 46, 47, 61, 69, 83, 84 and 91

DISCUSSIONS

CONTROVERSIES OF THE MUSLIM COMMUNITY

1. Many people see the Waqf Board Amendment Bill, 2024, as just another political ploy to reduce Muslim influence and representation in India, which has generated heated debates and discussions. On the surface, the measure aims to create an inclusive system that ensures that all people, regardless of caste, gender, color, or creed, have equal representation in politics, the workforce, the fight against poverty, and national development. Beneath these assertions of social welfare and economic advancement, though, is a political tactic that appears designed to achieve particular election victories.
2. It is clear that the measure is an extension of a pattern set by some political organizations and central regimes that have tried, time and time again, to use different strategies to marginalize Muslims. These attempts range from leveraging social media, television news networks, and religious gatherings to change public opinion against Islamic values, to spreading anti-Sharia narratives in popular media, such as through films like The Kerala Story and Hamare Baarah. Many see the Central-led government’s most recent legislative effort as an expansion of these strategies, with the goal of using the Indian Parliament to forward political agendas.
3. The Waqf Board Amendment Bill’s timing is especially divisive. India is currently negotiating a challenging geopolitical environment that includes significant regime shifts, political unrest in Bangladesh, Myanmar, Sri Lanka, and the Maldives, among other bordering nations. The Central administration is occupied with passing legislation that are thought to be anti-religious and anti-constitutional, such the Waqf Board Amendment Bill 2024, rather than concentrating on these regional issues. Many see the planned revisions as an illegal attempt to weaken the authority and sway of Waqf boards throughout India by renaming the statute the Unified Waqf Management, Empowerment, Efficiency, and Development statute of 1995.
4. Furthermore, the Waqf Board Amendment Bill, 2024, casts doubt on the Central Governemnt’s sincerity in advancing inclusivity, despite the party’s claims that it is a step toward female parity and equal representation. With its recent gains in the Lok Sabha, the BJP has one of the lowest percentages of female MPs and no Muslim MPs, in contrast to the Trinomial Congress’s strong dedication to women’s representation. This inconsistency raises questions about the true motivations behind the BJP’s legislative actions, which many view as an attempt to manipulate democratic systems for political advantage rather than as real social reform. It also implies a pattern of selective representation.
5. Minority rights and needs have always been taken into account while formulating laws in India; this is a premise that dates back to the 1950 activities of the Constituent Assembly[6]. Along with Jains, Christians, Buddhists, Parsis, Sikhs, and others, Muslims are recognized as an official minority in India. Article 25 guarantees their essential rights, including the ability to administer places of worship and possessions. Since the Waqf Board is an Islamic organization, Muslims are entitled to run it independently. These rights, especially Article 25, which safeguards religious freedoms, are thought to be directly violated by the recently suggested engagement of non-Muslims and increased government intervention under the pretense of resolving mismanagement and other issues.

The concerns surrounding the WAQF (Amendment) BILL 2024

1. Religious Rights Violation: According to critics, the measure violates the Muslim community’s right to self-governance over their own faith and the freedom of religion guaranteed by Article 25. 
2. Greater Government Control: The amendments being considered would give the government more authority over Waqf properties. This includes the ability to involve district collectors in property disputes. There are worries that it would result in possible judicial-executive overreach and bureaucratic delays.
3. Non-Muslims’ Presence on Waqf Boards: The participation of non-Muslims, according to critics, compromises the credibility of these religious organizations. Members who are not Muslims might not have a thorough awareness of Islam’s cultural and religious customs. 
4. Potential for increased disputes: The potential for a rise in conflicts over Waqf properties could result from the removal of the waqf tribunal’s power and the district collectors’ replacement in this capacity. Opponents claim that doing so could make the settlement process more difficult and expose properties to further legal issues.
5. Insufficient Community Consultation: The measure has come under fire for being developed without sufficient engagement from stakeholders and the Muslim community. Numerous groups, such as the All India Muslim Personal Law Board, have expressed disapproval at the bill’s creation without their involvement.

CONCLUSIONS

The Waqf Amendments of late suggest allowing non-Muslims to join Muslim religious organizations. This is perceived as an encroachment, particularly as Hindu institutions are not required to be equally inclusive. Despite the fact that women make up a sizable portion of India’s Hindu population (79.8%), the government has not changed Hindu religious rules to accommodate Muslims or women. This contradiction draws attention to a biased strategy that encourages polarizing politics and runs the risk of dividing India into “Hindu India” and “Muslim India.”

The NDA administration ought to settle legislative disagreements and concentrate on bringing the country together rather than proposing fresh, divisive amendments like the Waqf Board Amendment Bill, 2024. One way to successfully handle the issue would be to support K Rahman Khan’s ‘Waqf Properties (Eviction of Unauthorized Occupants) Bill, 2014,’ which proposes eviction operations against illegal encroachments without prior notice. Furthermore, creating a statutory body analogous to the UPSC, called the “All India Waqf Services Commission,” will guarantee competitive and equitable hiring practices for Waqf administration. The BJP government should address these concerns honestly and without politicizing them if it truly cares about minority representation, women’s rights, and the rights of regular Muslims.

REFERENCES

• doc2024913394001.pdf (pib.gov.in)
• Nairul SK. June 11, 2024. Ham Do Hamare Baarah: Another Bollywood Agenda to Tarnish Islam. IslamOnWeb English.
•  Liz Mathew and Asad Rehman. 25 August 2024. Waqf Bill: As Govt allies flag concerns and Opposition objects, House panel holds first meeting. The Indian Express.
•  Vrinda Tulsian. 08 August 2024. ‘To give justice to ordinary Muslims’: Rijiju Defends Waqf Bill amid Opposition. Hindustan Times.
• Anjishnu Das. 08 June 2024. Muslim representation in new Lok Sabha: 24 MPs, none from BJP-led NDA. The Indian Express
• Abbas, A. (2021). Waqf and State Control: A Historical and Legal Perspective. Islamic Law Journal, 15(2), 45-62.
• Al-Darwish, M. (2020). Legal Frameworks and Waqf Administration: Challenges in the Modern Era. Journal of Islamic Studies, 23(1), 78-99.
•  Ismail, A., & Shafi, R. (2019). Constitutional Conflicts in the Administration of Waqf Institutions: A Critical Analysis. Muslim Law Review, 21(3), 88-105.
•  Khan, R. (2021). State Intervention and the Future of Waqf: A Critique of the New Waqf Act Proposal. Islamic Endowment Journal, 18(4), 64-79.
•  Rahman, H. (2020). Waqf Reform in Malaysia: Lessons for Other Muslim-Majority Countries. Comparative Islamic Law Journal, 14(2), 110-127.

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