By Vaidehi Sharma, a student of BALLB at Mohanlal Sukhadia University
The Waqf Act, of 1995, is a significant piece of legislation in India, governing the management and regulation of waqf properties which involves endowments made by Muslims for religious, pious, or charitable purposes Recently an amendment to the Waqf Act 1995 was proposed titled as the Waqf (Amendment) Bill, 2024. It was introduced in the Lok Sabha on August 8, 2024, and was referred to the Joint Parliamentary Committee on the same day. The amendment marks a pivotal step in the evolution and regulation of the Waft Property.
The Bill proposes several amendments that adopt a pragmatic approach to deal with the management of waqf properties aiming to that aim to modernize and streamline the process. It also attempts to address concerns related to the inclusivity and transparency of the Waqf administration. This article provides a detailed comparison between the original Waqf Act, 1995, and the proposed amendments of 2024.
Renaming of the Act
Originally The Act was straightforwardly named the “Waqf Act 1995[1]”, with the objective of better administration of Waqf and matters connected therewith or incidental thereto. emphasizing its focus on the regulation of waqf properties.
The Bill proposes renaming the Act to the “United Waqf Management, Empowerment, Efficiency, and Development Act, 1995[2].” This new title reflects the pragmatic and modernized approach of the legislation to achieve the goals of empowerment, efficiency, and development in waqf management.
Formation of Waqf
Section 3(1) (r) of the original Act, defines waqf as permanent dedication by any person, of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable
Thus, the essentials to constitute a waqf are:
- There must be permanent dedication of the property
- The property may be movable or immovable property
- It can be dedicated only for the purposes recognized by Muslim Law as pious, religious, or charitable
According to the act, a waqf could be formed through three methods:
- By Declaration: A person could declare a property as waqf. According to the proposed amendments only a person practicing Islam for at least five years can declare a waqf, ensuring that the person declaring a waqf must own the property being declared.
- Waqf by User: Recognition of a property as waqf based on its long-term use for religious or charitable purposes. The amendment seeks to remove this type of waqf to remove confusion and ambiguities.
- Waqf-alal-aulad: An endowment where the succession line has ended, leading to the property being ipso facto designated as waqf. The amendment provides that this type of waqf formation shall not infringe upon the inheritance rights of the donor’s heirs including women.
The proposed amendment introduced significant changes in the formation of waqf. These changes are introduced to offer a uniform method of recognition to remove confusion and protect the rights of the legal heirs.
Government Property as Waqf
In the Waqf Act, 1955 there was no explicit mention of government property being declared as waqf. The Waqf (Amendment) Bill, 2024 introduces a clear provision upholding that any government property identified as waqf will cease to be so.
The Collector of an area is to be tasked with determining ownership in cases of uncertainty and submitting a report to the state government. If the property is deemed to be government-owned, the collector is authorized to update the revenue records accordingly.. This amendment seeks to protect government assets and prevent their inadvertent or improper classification as waqf.
Power to Determine if a property is Waqf
The bill seeks to remove the power endowed to the Waqf Board under Section 40 of the Waqf Board Act, to inquire and determine whether a property was waqf property and whether the waqf property belonged to shia or sunni waqf.
The amendment is done keeping in mind a broader picture to reduce potential conflicts of interest and ensure that the determination of waqf properties is more impartial or against the Rule of Law.
Survey of Waqf
Section 4 of the Act, provided for the appointment of the below-mentioned officer to carry out the purpose of making a survey
- Survey Commissioner and
- Additional commissioners to conduct surveys of waqf properties.
The Bill seeks to remove the provision for the appointment of a special officer to carry out the function of conducting the survey. It shifts the responsibility for surveying waqf properties to the Collectors, aligning the process with state revenue laws. These provisions shall have a retrospective effect and all the pending surveys will be completed according to these laws.
Central Waqf Council
Under Section 9 of the act, the Central Waqf Council was constituted to advise the central and state governments and Waqf Boards, with all members required to be Muslims. At least two members were to be women. The Bill seeks to introduce significant changes to the composition of the Council to ensure the inclusion of non-Muslim as well as Muslim members.
It mandates that the council must contain two non-Muslim members. These members must be non-Muslims and may be a Member of Parliament, former judges, and eminent persons appointed to the Council need not be Muslims. This change promotes inclusivity and diversity in the Council’s composition.
The council must also contain at least one member each from the Shias, Sunnis, and Backward classes of Muslims. It must also have one member each from Bohra and Agakhani communities if they have waqf in the state to ensure equitable representation of Muslims in the board. Also, the Board must have at least two women, ensuring gender representation
Waqf Boards
The Act provides for the election of up to two members each from electoral colleges of Muslim:
- MPs,
- MLAs and MLCs, and
- Bar Council members, from the state to the Board.
The Bill instead empowers the state government to nominate one person from each of the above background to the Board. They need not be Muslims. It adds that the Board must have:
- two non-Muslim members. and
- at least one member each from the Shias, Sunnis, and Backward classes of Muslims.
It must also have one member each from Bohra and Agakhani communities if they have waqf in the state.
The Act provides that at least two members must be women. The Bill states that two Muslim members must be women[3].
Composition of Tribunals
Section 83 of the Waqf Act, 1995 requires the constitution of Tribunals to address disputes over waqf, with the Chairman being a Judge of a certain rank and other members including a state officer and a person knowledgeable in Muslim law and jurisprudence. The Bill seeks to remove such requirement of knowledge of Muslim Law instead, it lays down the following criteria:
- Chairman: For a person to be eligible for chairman he must be a Judge of the rank equivalent to a Class-1, District, Sessions, or Civil Judge.
- Other Members: include a current or former officer of the rank of joint secretary to the state government.
This amendment likely aims to streamline the Tribunal’s operations and ensure that its members have the necessary legal and administrative expertise.
Appeal on Orders of Tribunals
According to Section 83(9) of the Waqf Act 1995, the decisions of the Tribunal were final, with no provision for appeals in courts. However, the High Court could Suo Moto consider matters or upon an application received by the Waqf Board or any aggrieved party.
The Bill seeks to omit the provisions rendering the Tribunal’s decisions as final and allowed the parties to prefer an appeal to a High Court within 90 days.
This change has significant importance since it enhances the rights of aggrieved parties to seek further judicial recourse, ensuring that the principles of natural justice are aligned with.
Powers of the Central Government
The Bill seeks to provide enhanced powers to the central government concerning:
- Making rules regarding registration,
- Publication of accounts of waqfs, and
- Publication of proceedings of Waqf Boards.
It also authorizes the central government to audit waqf accounts through the Comptroller and Auditor General (CAG) or a designated officer.
Waqf Boards for Bohra and Agakhani
The Bills seek to extend the scope and extent of Section 13 of the Waqf Act, 1995 to include Aghakhani and Bohra sects too. Originally the Act allowed for the establishment of separate Waqf Boards for Sunni and Shia sects if Shia waqfs constituted more than 15% of all waqf properties or waqf income in the state.
This amendment reflects a more nuanced understanding of the diversity within the Muslim community in India.
Conclusion
The Waqf (Amendment) Bill, of 2024 has introduced significant changes to the original Waqf Act, of 1995, with a focus on modernizing waqf management, enhancing inclusivity, and improving transparency. By comparing the original provisions with the proposed amendments, it becomes evident that the Bill seeks to address longstanding issues in the Waqf administration while also aligning with contemporary legal and social standards.
[1] https://www.indiacode.nic.in/bitstream/123456789/15941/1/the_waqf_act%2C_1995.pdf
[2]https://prsindia.org/billtrack/the-waqf-amendment-bill-2024 accessed on Aug 11, 2024
[3] https://prsindia.org/billtrack/the-waqf-amendment-bill-2024accessed on August 11, 2024
