Article: The Waqf bill 2024 is one that needs review

The Waqf Bill 2024 presents some procedural irregularities and potential negative impacts on the management of waqf properties. The proposed changes, including the inclusion of non-Muslim members in Waqf boards, has sparked controversy and criticism for potentially undermining the autonomy of these religious endowments.

Basics and Background

• Waqf (Amendment) Bill, 2024 was introduced in the Lok Sabha on 8 August 2024 and was referred to the Joint Parliamentary Committee after some criticism was received on the bill. It has not passed yet. The Bill renames the Act to ‘United Waqf Management, Empowerment, Efficiency and Development Act, 1995’.
• What is Waqf Property?: It is an Islamic concept where property is donated in the name of Allah for religious or charitable purposes. The property is then managed at the state level by the state Waqf Boards. 

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Central Waqf Council (CWC) Membership

• The Central Waqf Council (CWC) is the top body responsible for overseeing waqf properties across India. It provides guidance and ensures effective functioning of state Waqf Boards. It also ensures proper management, protection, and development of these religious endowments.
  • Original Provision: All 20 members of the CWC, including the Secretary, must be Muslims, as waqf properties are religious endowments made by Muslims for religious and charitable purposes.
    • Religious Endowments: For instance, Mahesh donated a property for the construction of the temple. That property is a religious endowment.
  • New Provision: The Waqf Bill 2024 proposes reserving two seats for non-Muslims in both the Central Waqf Council and State Waqf Boards, and removing the requirement (or the condition) that the Secretary must be Muslim.
  • Criticism: Critics argue that waqf properties are religious in nature and, like other religious endowments (Hindu temples, Sikh gurdwaras, etc.), should be managed by people of the same faith. 
  • Right to Freedom of Religion: Allowing non-Muslims to oversee Muslim religious properties dilutes the community’s control over their religious assets, violating their rights under Articles 25, 26, and 29 (Protection of interests of minorities) of the Constitution. These articles guarantee the right of religious communities to manage their own affairs.
  • Article 13 (2): Also, as in Article 13(2), the state is forbidden to make any law which takes away or abridges the rights conferred by this Part, declaring that any law made in contravention of this clause shall be void.

State Waqf Boards

• The State Waqf board manage and oversee Waqf properties within their respective states. 
• Each state in India has a Waqf Board, which is responsible for managing waqf properties in that region. 
• These boards ensure that waqf assets are used according to the donor’s intentions. It is a statutory body established by the Waqf Act of 1995. The Act was amended in 2013.
  • Original Provision: The State Waqf Boards are fully composed of Muslims, reflecting the religious nature of the properties.
  • New Provision: The Waqf Bill 2024 reduces the Muslim representation in State Waqf Boards to less than 50%, allowing non-Muslims to take up management roles.
  • Criticism: This change is viewed as discriminatory, as other religious communities are allowed to manage their own endowments (like temples and churches) without outside interference. Reducing Muslim control over waqf properties could lead to decisions that are not in line with Islamic principles, violating the community’s rights to self-governance under Article 26.

Female Representation

• To ensure gender inclusivity, the Waqf Amendment Act of 2013 introduced a requirement for at least two women to be part of the CWC and State Waqf Boards.
  • Original Provision: The 2013 Act mandates the inclusion of two women in these bodies.
  • New Provision: The Waqf Bill 2024 reintroduces the requirement for two women members in the CWC and State Waqf Boards.
  • Criticism: Critics argue that this provision is unnecessary as it was already implemented in the 2013 Waqf Amendment. Repeating it in the new Bill suggests a lack of awareness or attention to the existing law and could confuse the implementation process.

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Waqf Tribunal Composition

• The Waqf Tribunals are special courts set up to resolve disputes regarding waqf properties, ensuring that legal matters related to waqfs are handled fairly.
  • Original Provision: The tribunal includes an expert in Muslim law to ensure that judgments respect the religious principles governing waqf properties. Its decisions are final and binding.
  • New Provision: The Bill proposes removing the Muslim law expert from the tribunal and limiting the finality of its decisions.
  • Criticism: Without an expert in Muslim law, the tribunal may lack the knowledge needed to make informed decisions about religious matters. Also, weakening the tribunal’s authority could lead to prolonged legal disputes, undermining the effectiveness of waqf governance.

Encroachment and Violations

• One of the key roles of the Waqf Boards is to protect waqf properties from encroachments and ensure that they are used as per the donor’s intentions.
  • Original Provision: State Waqf Boards have the power to identify and act against encroachment and violations of waqf properties, with strong penalties for offenders.
  • New Provision: The Bill reduces the authority of State Waqf Boards to take action against encroachments and lowers the penalties for violations.
  • Criticism: Critics believe that weakening the powers of the Waqf Boards makes waqf properties more vulnerable to illegal encroachment and exploitation. Reducing penalties for offenders could embolden encroachers, making it harder to protect waqf lands.

Waqf Re-Registration

• Traditionally, waqf properties are recognized based on historical records, and many waqfs are centuries old. These properties are used for charitable and religious purposes.
  • Original Provision: Existing waqf properties are legally recognized based on historical records without needing to re-register. When the act and amendment was done it did not require people to re-register their properties.
  • New Provision: The Bill proposes that all waqf properties must re-register on a government-controlled portal, providing the original waqf deed, even if the property is centuries old.
  • Criticism: Many old waqf properties do not have accessible deeds due to their age. Requiring re-registration could lead to the loss of legal rights for many waqf properties, especially if original documents cannot be produced. Critics argue this is an impractical and unfair burden on waqf properties, which could result in the loss of valuable community assets.

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Mansha-e-Waaqif (Donor’s Will)

• The “Mansha-e-Waaqif” refers to the original intentions of the donor who established the waqf. These intentions guide how the waqf property is managed and used. For instance, Rahim donated his property to waqf. He wanted this property to be used for the needy. That’s how the property will be used.
  • Original Provision: It is mandatory to follow the donor’s will in managing waqf properties.
  • New Provision: The Bill proposes discontinuing the requirement to implement the donor’s will.
  • Criticism: This proposal is seen as undermining the very foundation of waqf properties, which are meant to fulfill the charitable and religious intentions of the donor. Disregarding the donor’s will could lead to misuse or mismanagement of waqf assets, violating the trust placed in the waqf system.

Limitation Act Exemption

• The Limitation Act sets time limits for legal actions on property disputes. Waqf properties are exempt from these limits, allowing flexibility in handling disputes.
  • Original Provision: Waqf properties are exempt from the Limitation Act, meaning they can pursue legal claims without time restrictions.
  • New Provision: The Bill proposes removing this exemption, making waqf properties subject to the same time limits as other properties.
  • Criticism: Critics argue that this change could result in the loss of waqf properties due to legal technicalities. Other faith-based properties continue to enjoy this exemption, so removing it for waqfs creates an unequal legal framework, making it harder to reclaim misappropriated waqf assets.

Waqf-by-User Derecognition

• Waqf-by-user refers to properties that are used for religious or charitable purposes without formal documentation but are recognized based on long-standing community use.
  • Original Provision: Waqf-by-user properties are legally recognized even without formal deeds (formal papers) and are used for generations for religious purposes.
  • New Provision: The Bill proposes derecognizing waqf-by-user properties, requiring all waqfs to have formal documentation.
  • Criticism: Many waqf properties, especially those that are centuries old, lack formal documentation but have been used by the community for religious purposes for generations. Derecognizing these properties could lead to their loss, affecting community services and religious activities. Critics see this as an unnecessary bureaucratic hurdle that disregards historical practices.

CWC Leadership and Functioning

• The Central Waqf Council (CWC) oversees the functioning of all State Waqf Boards, monitoring their financial performance, removing encroachments, and ensuring proper management of waqf properties.
  • Original Provision: The CWC must have 20 Muslim members, including a full-time Muslim Secretary to manage its affairs.
  • New Provision: For the past two years, the Ministry has not appointed a full council or a full-time Secretary, with a non-Muslim officer handling additional duties.
  • Criticism: This neglect violates existing waqf law and hampers the CWC’s ability to effectively oversee waqf properties. Without proper leadership, the management and protection of waqf assets have been compromised, leading to a lack of accountability and transparency. Critics believe the Ministry is not prioritizing the waqf system’s needs.

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Conclusion

The Waqf Bill 2024 requires careful review to ensure it balances the need for reform with the preservation of community rights. A robust and fair system is essential to maintain the integrity and purpose of waqf properties, serving their intended religious and charitable functions effectively.

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