The Waqf (Amendment) Bill, 2024: A New Era of Transparency and Justice?

August 8, 2024, the Ministry of Minority Affairs led by Minority Affairs Minister Shri Kiren Rijiju introduced a historic Bill in the Lok Sabha, The Waqf (Amendment) Bill, 2024 (“Amendment Bill / Bill”). The Bill aims to overhaul the management of Waqf properties.

The Waqf board as per reports is the 3 rd largest landowner in India after the Armed Forces and Indian Railways [1] . Even though such a big chunk of property is under the control of the Waqf Board, there has always been an undercurrent of dissatisfaction specifically with Transparency, Governance and Accountability. The amendment to the erstwhile Waqf Act, of 1995 (“Act”) aims to rid the regime of the challenges mentioned above. A Waqf is defined [2] as the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by Muslim law as religious or charitable.

Formation Of Waqf:

The Act allows Waqf to be formed by:
(i) Declaration [3] ,
(ii) Recognition based on long-term use [4] (waqf by user), or
(iii) Endowment when the line of succession ends [5] (waqf-alal-aulad).

Under the Act, any individual could create a Waqf for religious or charitable purposes recognised under Muslim law [6] . However, the Bill states that only a person practising Islam for at least five years may declare a Waqf.  It clarifies that the person must own the property being declared [7] .  It has removed the formation of Waqf through Waqf by user. It has also specifically added that the formation of Waqf by waqf-alal-aulad must not result in the denial of inheritance rights to the donor’s heir including women heirs [8] .

The Bill requires every Waqf that was registered before the Amendment Bill to file the details of the Waqf and the property on a database within 6 months of the bill coming into force or as specified by notification. The details must include boundaries of the property, details of the creator of the waqf and mode of such creation, income and finances and any other details as required [9] .

The Bill states that any government property identified as Waqf will not be deemed to be Waqf property. Any dispute as to the nature of property shall be referred to the Collector having jurisdiction, and he/she will be required to submit a report. The property shall not be treated as Waqf property till the submission of the report. The State government shall upon receipt of the report direct the board to make appropriate changes in the land records [10] .

The Waqf Board is authorized by the Act to investigate and ascertain whether a property is a waqf. The Board appoints a Survey Commissioner and other commissioners to conduct waqf surveys in order to accomplish this. This clause is removed from the Bill, giving Collectors the authority toconduct the survey instead. The State revenue laws will be followed in conducting any pending surveys.

Composition

The Amendment Bill modifies the Central Waqf Council’s composition, requiring two non-Muslim members and allowing non-Muslims in certain roles. Waqf Boards will now be nominated by State governments rather than elected, ensuring representation from various Muslim sects and communities. The composition of the Tribunals would also change in so far as the requirement for a member knowledgeable in Muslim law is now removed.

Appeal Provisions

Under the Act, the decisions of the Tribunal are final, and an appeal against its decision is not provided as a matter of right. The provision as it stands, permits the High Court to consider matters on its own accord or on an application by the Board, or by an aggrieved party.

The Bill, in contrast, grants a statutory right of appeal and allows the parties to challenge the orders of the Tribunal before the High Court within 90 days [11] .

Limitation

Section 107 [12] of the Act has been omitted under the Bill so as to make the Limitation Act, 1963 applicable to any action under the Act.

Powers of the Central Government 

Under the Act, the State government has the authority to audit the accounts of the Waqf at any point. The Bill empowers the central government to make rules regarding: (i) registration, (ii) publication of accounts of Waqf, and (iii) publication of proceedings of Waqf Boards. The Bill empowers the Central government to get these audited by the CAG or a designated officer.

Conclusion

The Waqf (Amendment) Bill, 2024 as of today is placed before the Joint Parliamentary Committee wherein various stakeholders have submitted their suggestions. The Bill represents a significant development in the management and oversight of Waqf properties, particularly with the inclusion of appeal provisions, which can enhance accountability. The involvement of the revenue department in the declaration process of Waqf properties is a constructive step, ensuring a more systematic and regulated approach to Waqf management.

However, the decision to include non-Muslims on the board may not be as favourable. The inclusion might be portrayed as an attempt to increase inclusivity but may lead to governance issues. The Waqf properties as of today are still governed by the principles of Islamic law, having non-Muslims on the board may lead to conflicting opinions due to a non-holistic understanding of the principles.

References

[1] Explainer on Waqf Amendment Bill, 2024 | Press Information Bureau,
https://static.pib.gov.in/WriteReadData/specificdocs/documents/2024/sep/doc2024913394001.pdf

[2] Section 3(r) of the Wakf Act, 1995

[3] This involves a formal declaration (oral) or written statement by the donor specifying their intention to create a waqf. Where any land or building or any portion thereof has been used permanently for any religious or pious purpose, with the concurrence or knowledge of the owner, then it will be treated as waqf by user.

[4] Under this, the donor establishes a trust for the benefit of their descendants or family members

[5] Supra, 2

[6] Section 3A (1) of the Waqf (Amendment) Bill, 2024

[7] Section 3A (2) of the Waqf (Amendment) Bill, 2024

[8] Section 3B of the Waqf (Amendment) Bill, 2024

[9] Section 3C of the Waqf (Amendment) Bill, 2024

[10] Section 83 of the Waqf (Amendment) Bill, 2024; “(9) Any person aggrieved by the order of the Tribunal, may appeal to the High Court within a period of ninety days from the date of receipt of the order of the Tribunal.”

[11] Section 107 of the Waqf Act, 1995; Act 36 of 1963 not to apply for recovery of waqf properties. Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any [waqf] or for possession of any interest in such property.