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The bill represents a major reform in Waqf management, ensuring that Waqf properties serve their intended purposes and benefit the community
The Waqf Board Amendment Bill 2024 has been tabled in the Lok Sabha today, marking a transformative shift in the management of Waqf properties across India. With around 40 proposed amendments to the existing Waqf Act of 1995, the bill aims to enhance accountability, transparency, and inclusivity within the Waqf system.
The bill, introduced by Minister of Minority affairs Kiren Rijiju, faced significant criticism from the opposition, which sought the bill be withdrawn. Congress Leader K C Venugopal called the bill an "attack on federal system."
A waqf is an endowment of property held in a trust and used for charitable or religious purposes. For a valid waqf, there are some essential conditions to be fulfilled, such as the permanent dedication of property in the name of ‘allah’ and the dedicator, known as a waqif, must be a muslim. According to a report by The Hindu, Waqf Boards, responsible for the administration of waqf properties, are the third largest landowners in India.
Key Provisions of the Waqf Amendment Bill 2024:
Representation on Waqf Boards: Ensuring representation of Muslim women and non-Muslims in Waqf boards.
Separate Board for Boharas and Aghakhanis: Establishing a separate Board of Auqaf for the Boharas and Aghakhanis.
Representation for Diverse Muslim Communities: Providing representation for Shias, Sunnis, Bohras, Agakhanis, and other backward classes among Muslim communities.
Definition of Waqf: Defining "Waqf" as a property dedicated by a person practicing Islam for at least five years.
Streamlined Registration: Streamlining registration of Waqfs through a central portal and database.
Mutation Procedure: Establishing a procedure for mutation as per revenue laws.
Arbitration by District Collector: The Bill introduces Clause 3C, empowering the district collector to determine whether a property is a Waqf property or government land, overriding the exclusive jurisdiction of the Waqf tribunal.
Removal of "Waqf by Use" Concept: The Bill omits provisions related to "Waqf by use," requiring a valid Waqf deed for a property to be deemed Waqf, even if it has been used as such for a long time.
Mandatory Waqf Deed: Section 18 of the Bill introduces amendments to Section 36, requiring the execution of a Waqf deed for creating a new Waqf property.
District Collector's Report: The Bill mandates the Waqf Board to forward applications for Waqf property registration to the district collector for verification, and the collector's report will be binding.
Removal of CEO's Religious Criterion: The Bill removes the provision requiring the Chief Executive Officer of a Waqf Board to be a Muslim.
History of the Waqf Act and Amendments:
The concept of Waqf (endowment) was introduced in India with the advent of Muslim rule. During the Mughal and Sultanate periods, Waqf management was centralized and theocratic in nature. The earliest recorded Waqf in India dates back to the Delhi Sultanate, when Sultan Muizuddin Sam Ghaor dedicated two villages to the Jama Masjid of Multan and entrusted its administration to Shaikhul Islam. Waqf was also closely linked to conversion and cultural appropriation in pre-British India. Historians like Thomas Arnold and Muzaffar Alam have noted that Sufis played a significant role in converting Hindus to Islam, often by appropriating local customs and traditions. Richard Eaton has described this process as "accretion and reform," where Sufi saints would adopt Hindu practices and nominally convert the population to Islam. However, the legislation on Waqfs has undergone significant changes over the years. Here's a brief overview:
British Era (1810-1947): Initial regulations managed religious endowments but did not differentiate between Hindu and Muslim endowments.
Religious Endowments Act, 1863: Shifted control from the government to managers or committees.
Charitable Endowments Act, 1890: Managed properties held in trust for charitable purposes.
Charitable and Religious Trusts Act, 1920: Allowed for court intervention in trust matters.
Mussalman Wakf Validating Act, 1913: Validated family Waqfs despite prior legal challenges.
Mussalman Wakf Act, 1923: Focused on maintaining and publishing Waqf property accounts.
Waqf Act, 1954: Established Waqf Boards with extensive powers.
Waqf (Amendment) Act, 1984: Introduced notable changes, facing opposition from the Muslim community.
Waqf Act, 1995: Consolidated previous laws, incorporating the 1984 Act’s major provisions.
Waqf (Amendment) Act, 2013: Expanded Waqf Board powers, including issuing directions to states not having a waqf board to establish such board, state funded survey of waqf bodies and imprisonment provisions for those found to have acquired or occupied the waqf property without due authorisation.
Why the Amendments are not Unconstitutional
Though some critics argue that the bill, if implemented, will be unconstitutional, it is worth noting that the Waqf does not fall under the scope of Article 25 and 26 of the Constitution of India, which deals with the freedom of religion and religious denominations. A religious denomination is defined as a group of individuals with a common faith, organization, and distinctive name (Article 26).
In the landmark case of ‘Bramchari v. State of W.B.’ (AIR 1995 SC 2089), the Supreme Court established three essential elements for a religious denomination:
The Waqf Board does not meet these criteria, as it is a statutory body and not a representative body of Muslims. It is more akin to a company, comprising individuals who join together to constitute it. Therefore, any suggested changes to the Waqf would not infringe upon the fundamental rights guaranteed under Article 25 and 26 of the Indian Constitution.
Why the 2024 Amendments are Important:
The Waqf Board Amendment Bill 2024 addresses long-standing issues related to property management and representation. The amendments aim to:
The Waqf Board Amendment Bill 2024 is a significant step towards reforming the Waqf system.The proposed amendments aim to enhance the efficiency and integrity of the Waqf system without infringing on constitutional rights. The Waqf is a statutory body, and the amendments aim to enhance its functioning, transparency, and accountability. The passage of the bill is expected to have a profound impact on the management of Waqf properties in India, ensuring that they are used for their intended purposes and benefiting the community at large.
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