WAQF BOARD AND THE RECENT BILL

Author: ANUBHAV TIWARI, VES COLLEGE OF LAW, MUMBAI

ABSTRACT

The Waqf system in India plays a crucial role in managing properties donated by Muslims for religious, charitable, and social purposes. Governed by the Waqf Act of 1995, the Waqf Boards oversee properties supporting mosques, schools, orphanages, and other welfare institutions. However, the system has faced challenges such as corruption, encroachments, and mismanagement. Historically rooted in Islamic tradition, the waqf system dates back to the Prophet Muhammad and was institutionalized in India during colonial times, with modern legislation evolving post-independence.

The Waqf Amendment Bill, 2024, introduced in Parliament, proposes significant reforms. Key changes include renaming the Waqf Act to the “Unified Waqf Management, Empowerment, Efficiency, and Development Act,” broadening the definition of waqf properties, digitizing records, and enhancing transparency. The bill also addresses issues like gender equity, strengthens the powers of the Waqf Boards, and proposes stricter penalties for encroachments and violations. Furthermore, it reforms the Tribunal system, includes representation for various Muslim communities, and proposes creating a separate board for Boharas and Aghakhanis. If passed, the bill aims to modernize waqf governance, improve accountability, and ensure the protection and efficient use of waqf assets.

INTRODUCTION

The Waqf Board is our country’s statutory body. It regulates religious land decisions in the Country. India is responsible for managing properties donated for religious and charitable purposes by Muslims. These properties, known as waqf, support activities like mosques, schools, orphanages, and other welfare institutions. The Waqf Act of 1995 governs its operations, aiming to regulate and protect these assets from misuse or encroachment.

Each state in India has its own Waqf Board, which functions under the guidance of the Central Waqf Council, a national body that advises and oversees the effective administration of waqf properties. The revenue generated from these assets is used for religious, educational, and social services within the Muslim community. However, the management of waqf properties has faced challenges, such as corruption, illegal occupation, and poor governance, making reform efforts critical to safeguarding their original purpose.

HISTORICAL BACKGROUND

The Waqf Board has a long historical background rooted in Islamic tradition, especially in the context of charitable endowments (waqf). The concept of waqf itself is an Islamic legal practice dating back to the time of Prophet Muhammad, where a property or asset is set aside for a charitable or religious purpose, ensuring that its benefits continue to serve the community perpetually. Here’s an overview of the historical development of the waqf system and the creation of Waqf Boards:

Origins of Waqf in Islamic Law:

Early Islamic Period: The idea of waqf emerged during the early days of Islam as a means of fostering community welfare and preserving religious institutions. The Prophet Muhammad is reported to have encouraged his companions to endow their wealth for religious and public use. Early waqfs were often created for mosques, schools, wells, and orphanages.
Ottoman Empire: The waqf system flourished under the Ottoman Empire (1299–1922), becoming a key institution in managing charitable trusts. By this time, the concept had evolved, and waqfs became widespread, supporting public works such as hospitals, education, and religious activities. The Ottomans institutionalized the management of waqf properties, introducing legal frameworks to ensure their proper administration.

Waqf in Colonial India:

Medieval India: The waqf system entered India with the arrival of Muslim rulers, beginning with the Delhi Sultanate (13th–16th centuries) and later the Mughal Empire (16th–19th centuries). Mosques, madrasas (Islamic schools), and other religious institutions were funded through waqfs during these periods.
British Colonial Rule (19th century): During the British rule in India, the waqf system continued, but with significant changes. The British were initially unfamiliar with the intricacies of waqf law and faced difficulties in governing such endowments. Over time, colonial authorities realized the importance of regulating waqf properties due to their extensive holdings and potential for misuse or mismanagement. The British enacted the first Waqf legislation, including the Waqf Validating Act of 1913, which formally recognized waqf as a legal institution.

Post-Independence and Establishment of Waqf Boards:

Post-1947: After India gained independence in 1947, the government continued to address the management of waqf properties due to their large-scale presence across the country. The management of these properties became a complex issue, given the legal, religious, and social implications.
Waqf Act of 1954: This Act was one of the early attempts by the Indian government to regulate and manage waqf properties. It established Waqf Boards at the state level to oversee the administration of waqf assets and prevent their mismanagement.
Central Waqf Council (1964): The Central Waqf Council was created under the Waqf Act of 1954, operating as a national body to provide guidance, supervision, and coordination among the various State Waqf Boards. It advises the government on issues related to waqf and ensures the proper management of these properties.
Waqf Act of 1995: This law replaced the earlier legislation, aiming to improve the administration of waqf properties. It introduced stricter regulations for the functioning of State Waqf Boards and created mechanisms to address issues like encroachment on waqf land and financial mismanagement.

Contemporary Role of Waqf Boards:

Today, Waqf Boards play a significant role in managing and overseeing thousands of waqf properties across India. These properties are used for religious, educational, and charitable purposes, and the boards are responsible for ensuring they are used appropriately and not misappropriated. Despite the legal framework, there have been ongoing challenges related to the management, protection, and utilization of waqf assets in modern India. The government’s interest in digitalizing waqf records and improving governance continues to evolve.

THE NEW WAQF AMENDMENT BILL, 2024

On August 08, 2024, two bills were introduced in the Lok Sabha one was the Waqf (Amendment) Bill, 2024, and the other was the Mussalman Wakf (Repeal) Bill, 2024. The Minister-in-charge of the Bill proposed constituting a Joint Committee of both the Houses and referring the Bill to it. Subsequently, on 09.08.2024 through separate Motions adopted by both Houses of Parliament, the said Bill was referred to a Joint Committee comprising 21 Members from Lok Sabha and 10 Members from Rajya Sabha with the mandate to examine the Bill and make a report on the Bill to the Parliament by the last day of the first week of the next Session (i.e., Winter Session, 2024). The composition of the Joint Committee on the Waqf (Amendment) Bill, 2024 was published in Bulletin Part-II No. 794 dated 13.08.2024 and the Hon’ble Speaker appointed Shri. Jagdambika Pal, MP, Lok Sabha as the Chairperson of the Joint Committee. As per the Statement of Objects and Reasons, the Bill, inter alia, provides for the following, namely: –

(a) Renaming of the Waqf Act, 1995 as the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995;

(b) Clearly define “waqf” as waqf by any person practicing Islam for at least five years and having ownership of such property;

(d) Omitting the provisions relating to the “waqf by user”;

(e) Providing the functions of the Survey Commissioner to the Collector or any other officer not below the rank of Deputy Collector duly nominated by the Collector for the survey of waqf properties;

(f) Providing for a broad-based composition of the Central Waqf Council and the State Waqf Boards and ensuring the representation of Muslim women and non-Muslims;

(g) Providing for the establishment of a separate Board of Auqaf for Boharas and Aghakhanis;

(h) Providing for representation of Shia, Sunni, Bohra, Agakhani, and other backward classes among Muslim communities;

(i) Streamlining the manner of registration of waqfs through a central portal and database;

(j) Providing a detailed procedure for mutation as per revenue laws with due notice to all concerned before recording any property as waqf property;

(k) Omitting section 40 relating to the powers of the Board to decide if a property is waqf property;

(l) Decreasing the annual contribution from seven percent. To five percent. Payable to the Board by mutawalli of every waqf having a net annual income of not less than five thousand rupees;

(m) Providing for filing of accounts of waqf by mutawallis to the Board through a central portal for better control over their activities;

(n) Reforming the Tribunal structure with two members and providing for appeals against the orders of the Tribunal to the High Court within a specified period of ninety days;

(o) Omission of section 107 to make the Limitation Act, 1963 applicable to any action under the Act; and omission of sections 108 and 108A relating to special provision as to evacuee waqf properties and Act to have overriding effect.

THE DIFFERENCE BETWEEN THE OLD AND THE NEW WAQF ACT IF THE BILL PASSES

The Waqf Act of 1995 governs the administration and management of waqf properties in India. The Central Government has proposed changes to this act to address certain challenges, improve transparency, and streamline administration. If the Waqf Bill, 2023 passes, it will bring in several important changes. Here’s a comparison between the current Waqf Act, 1995, and the proposed changes in the new bill:

1. Definition of Waqf Property:

Waqf Act, 1995: The definition of waqf property includes properties dedicated to religious, charitable, or pious purposes under Muslim law.
Proposed Changes: The definition is likely to be broadened, making it clearer and more specific to include various types of properties, especially to curb encroachments and illegal claims.

2. Power of Waqf Boards:

Waqf Act, 1995: The Waqf Boards have the power to manage, protect, and take legal actions regarding waqf properties. However, there were criticisms about inefficiency and a lack of accountability.
Proposed Changes: The powers of the Waqf Boards may be increased, with more accountability mechanisms to ensure efficient management. The bill may provide for greater oversight by state governments or introduce penalties for non-compliance.

3. Transparency and Digitization:

Waqf Act, 1995: There were limited provisions for ensuring transparency in the management of waqf properties.
Proposed Changes: One of the major reforms expected is the digitization of waqf records and properties, making the entire process more transparent. The central and state Waqf Boards will be required to upload details of waqf properties and management activities on an online platform.

4. Encroachments and Unauthorized Use:

Waqf Act, 1995: Encroachment on waqf properties was a significant issue, but the act had limited mechanisms to effectively deal with it.
Proposed Changes: The new bill will likely have stronger provisions against encroachments, possibly including stricter penalties and faster legal remedies to recover illegally occupied properties.

5. Dispute Resolution:

Waqf Act, 1995: Disputes over waqf property were referred to Waqf Tribunals, which sometimes had a backlog of cases.
Proposed Changes: The new law may introduce faster dispute resolution mechanisms to deal with waqf-related cases, possibly through a strengthened Waqf Tribunal system with better resources or by improving timelines for resolution.

6. Role of State Governments:

Waqf Act, 1995: The role of the state governments in waqf management was limited, primarily focused on supervising the Waqf Boards.
Proposed Changes: The bill could strengthen the role of state governments, requiring them to take more active measures in auditing and supervising waqf properties to ensure proper management and compliance with regulations.

7. Regulation of Waqf Boards:

Waqf Act, 1995: The functioning of Waqf Boards was criticized for inefficiency and corruption, with limited checks on their activities.
Proposed Changes: The new bill may include provisions for regular audits, stricter financial controls, and enhanced supervision of Waqf Boards by the government to reduce corruption and inefficiency.

8. Criminal Penalties:

Waqf Act, 1995: The act includes certain criminal penalties, but they are often seen as inadequate to deal with large-scale violations.
Proposed Changes: The penalties for encroachments, mismanagement, and violations related to waqf properties might be made stricter, including the introduction of heavier fines or jail terms for serious violations.

FAQ’s

The Waqf Amendment Bill 2024 is expected to make significant changes to the management and governance of waqf properties in India. Here are some frequently asked questions (FAQs) about the bill:

1. What is the Waqf Amendment Bill 2024?

The Waqf Amendment Bill 2024 is a proposed legislation aimed at amending the Waqf Act, 1995, which governs the administration of waqf properties in India. It seeks to address issues related to the management, oversight, and use of waqf properties.

2. What is a Waqf?

A waqf is an Islamic charitable endowment of property or assets, typically for religious, educational, or philanthropic purposes. These properties are managed by Waqf Boards established under the Waqf Act.

3. Why is the amendment needed?

The bill aims to reform the administration of waqf properties, improve transparency, and address allegations of corruption and mismanagement. It is also expected to protect waqf properties from illegal encroachments and misuse.

4. What are the key changes proposed in the Waqf Amendment Bill 2024?

Digitization and Transparency: Introduction of digitized records for all waqf properties to prevent illegal transfers and encroachments.

Stricter Penalties: Enhanced penalties for illegal occupation or transfer of waqf properties.

Enhanced Oversight: Strengthening the powers of the Central Waqf Council to monitor and intervene in cases of mismanagement by state Waqf Boards.

Appointment of Professionals: Allowing professionals such as accountants and legal experts to be part of Waqf Boards for better governance.

5. How will the bill address corruption in Waqf management?

The bill proposes enhanced transparency by digitizing waqf property records and mandating regular audits. It also strengthens the role of the Central Waqf Council in monitoring the activities of State Waqf Boards.

6. What provisions are there for protecting waqf properties from encroachments?

The bill includes stricter penalties for illegal encroachments and illegal transfers of waqf properties. It also calls for collaboration between Waqf Boards and local authorities to prevent such encroachments.

7. How will the new bill impact stakeholders of waqf properties?

The bill aims to ensure better protection and utilization of waqf properties, which will benefit the communities that rely on waqf institutions for religious, educational, and social services. However, stakeholders involved in waqf property disputes might face stricter regulations.

8. Does the bill face any opposition?

Some stakeholders, including certain community leaders and Waqf Boards, have raised concerns about the potential over-centralization of powers in the hands of the Central Waqf Council and government interference in waqf matters.

9. What are the penalties for violations under the new amendment?

The amendment proposes increased fines and imprisonment for those found guilty of encroaching on or mismanaging waqf properties, or falsifying waqf records.

10. When will the Waqf Amendment Bill 2024 come into effect?

The bill is currently under discussion in Parliament and is expected to be passed and implemented later this year, pending approval and presidential assent.