Encroachment Through Legislation: Understanding the Changes Introduced by the Waqf Bill

Introduction

Recently, the Waqf (Amendment) Bill, 2024, has been introduced in the Parliament. The bill seeks to significantly amend the Waqf Act, 1995, to the prejudice of the Muslim community. It gives unbridled power to the Government to interfere in the administration of Auqaf and is replete with unreasonable and arbitrary insertions or deletions, which would enable the Government to easily encroach upon the land of the Muslim community. The land that is dedicated to the ownership of Allah for the continued benefit of the community is being blatantly attacked by this bill. We, as responsible members of the community, must understand how this bill aims to dilute the community’s control over its own land.

What is Waqf?

The concept of Waqf originates from Islamic law. Waqf means permanent dedication of any movable or immovable property in the name of Allah, for any purpose recognized by Muslim law as pious, religious, or charitable. Once a property is designated as Waqf, it cannot be sold, transferred, or given as a gift. Instead, the property’s income or produce is to be used for a purpose as specified by the Waqif.

Waqf – Private Property of the Community

Waqf property is actually the private property of the Muslim community. Having a private character, it has a communitarian utility. The bill interferes with this private right and imposes limitations on the rights of the Waqif. Clause 4 of the Bill provides for the insertion of Section 3A.¹ Sub-section (2) of Section 3A states that the creation of a Waqf-Alal-Aulad shall not result in the denial of inheritance rights of heirs of the Waqif. Conversely, Section 59 of the Indian Succession Act, 1925, entitles the property owner to dispose of his property by will without any limitations.² Similarly, there is no limitation on donating one’s property to charitable causes. This unnecessary intervention does not only affect the Waqf law but it also imposes pre-Waqf limitations on the right of disposal of private property.

Waqf-Alal-Aulad

Waqf-Alal-Aulad is a Waqf that is created for the benefit of private individuals such as the settlor’s family. When the line of descent of such a Waqf fails, the property is utilised for the larger benefit of the community.³ In this respect, Section 3(r)(iv) of the current Act states, “…when the line of succession fails, the income of the Waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law.”⁴ Clause 3 of the bill proposes to amend this provision thus, “…when the line of succession fails, the income of the Waqf shall be spent for education, development, welfare, maintenance of widow, divorced woman and orphan in such manner, as may be prescribed by the Central Government, and such other purposes as recognised by Muslim law.”⁵

This insertion gives central government the right to prescribe the usage of Waqf property when the line of succession of a Waqf-Alal-Aulad fails. This provision is analogous to the doctrine of lapse that was introduced by the Britishers to annex the territories of rulers who did not have a male heir.⁶ This invocation of colonial philosophy in the bill clarifies the intention of the government. Even if the line of succession fails, the property should revert to the community and the community should have the right to decide its purpose. The government’s intervention is completely uncalled for in such circumstances.

Waqf Tribunals

Waqf Tribunals were constituted under the 1995 Act by way of Section 83. In 2013, the composition of the Tribunal was amended in order to make it more efficacious. The current provision also mandates the inclusion of a person having knowledge of Muslim law and jurisprudence in the Tribunal.⁷ This representation is imperative as civil judges and magistrates do not have the requisite knowledge to deal with issues related to Waqf. The inclusion of Muslim law experts is extremely important for a transparent and trustworthy administration of disputes relating to Waqf properties. The bill excludes the inclusion of a Muslim law expert in the Tribunal and completely vests the power of adjudication in the hands of people who don’t have knowledge of Waqf law.⁸

Section 7 of the current Act gives finality to decisions of the Tribunal⁹ but Clause 8 of the bill takes away this power from Waqf Tribunals.¹⁰ The current Act limits the jurisdiction of the High Court but the bill establishes the appellate jurisdiction of the High Court.¹¹ This hierarchy will increase the burden of the High Courts and further, judges don’t have the know-how to deal with issues related to Waqf.

Inclusion of non-Muslims

The proposed bill provides for the inclusion of non-Muslims in the Central Waqf Council as well as State Waqf Boards.¹² These two bodies are responsible for ensuring the efficient administration of Auqaf. The Central Waqf Council gives advice to the Central Government, the State Governments, and the Boards on matters related to the functioning of the Waqf Boards.¹³ The Waqf Boards of each state ensure that Auqaf under its mutawallis are properly maintained, controlled, and administered and the income generated is duly applied to the purposes for which such Auqaf were created or intended.¹⁴

Now, as the proposed bill mandates the inclusion of two non-Muslims in the key Waqf institutions, two significant concerns arise. First, whether similar proposals would be entertained for temple trusts; i.e., to have non-Hindus on governing boards. Currently, many temple trusts do not include non-Hindus in their governance structures, they even do not allow Sikhs, Jains, and Buddhists to be members of Hindu Temple Boards, despite the fact that they are Hindus as per Article 25 of the Constitution of India.¹⁵ Second, this provision undermines the integrity of these religious bodies. Non-Muslim members, adhering to different faiths, may lack a comprehensive understanding of the piety purpose of waqf and the sanctity of rulings of Islam regarding Auqaf. This raises concerns about the ability of these members to fully appreciate and uphold the pious intentions behind Waqf.

Powers to CEO and Collectors

Assigning the district collector the authority to determine whether a property is Waqf land or government property appears to be an attempt to sideline Muslims from managing Waqf properties,¹⁶ especially at a time when the same collector has been known to arbitrarily bulldoze even private properties of Muslims at various place. There is significant apprehension about how it can be ensured that the same collector will not misuse his power in the case of Waqf properties.

Furthermore, it is widely recognized that the office of the collector is already overburdened, and this amendment imposes yet another duty upon them. The irony lies in the government’s claim that they aim to ensure efficient management of Waqf properties. Adding further responsibilities to an already overburdened office is unlikely to increase efficiency; rather, it may decrease it.

Additionally, the requirement for a Muslim CEO on Waqf Boards has been removed.¹⁷ The government is also introducing various impediments to the creation of new Waqfs and has empowered itself, along with every governing body down to the local panchayat, to interfere with existing Waqf properties.¹⁸

Waqf By User

Due to the lapse of time, the documentary proof of a Waqf may not be available. However, such properties are deemed to be Waqf properties due to their dedicated usage as Waqf for a long time. The proof that a property is being used as a Waqf property is sufficient in such a case. This form of Waqf is recognised under the 1995 Act. The bill has omitted the provision that gives recognition to Waqf by the user.¹⁹ This will enable the government to target various mosques, madrasas, graveyards, and other Waqf properties that are being used by the Muslim community for various purposes. In the absence of a valid Waqf deed, the legitimacy of the Waqf property may be disputed, which may ultimately enable the government to encroach upon properties that have been used as Waqf properties for decades and centuries.

Waqif Must Practice Islam for Five Years

The bill further curtails one’s right to freedom of religion. In the present Act, any person can dedicate his property as Waqf but the bill makes this right conditional upon the fact that one must practice Islam for at least five years in order to make a Waqf.²⁰ This is a blatant attack on one’s religious freedom and it questions the sincerity of a person, which is absolutely a private affair between the person and God.

Undemocratic Composition of Waqf Board

The present Act provides for a democratic framework for the election of members of the Waqf Board. Such members must be elected from an electoral college consisting of learned Muslims such as Muslim MPs, MLAs, Lawyers etc. and some are nominated by the State Government.²¹ The bill has proposed to dissolve the electoral process and has given power to the State Government to nominate members.²²

Limitation Period and Judicial Review

The proposal of the insertion of clause 10 under Section 36²³ of the Act is deeply concerning as it violates the principle of judicial review which is a basic structure of the Constitution. The proposed sub-clause says that no court shall have authority to decide a suit or appeal filed on behalf of an unregistered waqf after the expiry of six months from the commencement of the Waqf (Amendment) Act, 2024.²⁴

This provision also shows the real intention of the government behind this amendment, as it is almost impossible and impractical to register all unregistered Auqaf within the period of six months considering the vast number of Auqaf in our country and the slow functioning of our current administrative setup. Consequently, a large number of Auqaf will remain unregistered, and after this limitation period, access to the judiciary will be entirely denied. Is this how the government intends to empower and develop the waqf system in India?

Conclusion

As Waqf land constitutes the third largest land-holding, the government wants to encroach upon these resourceful pastures of land in order to deprive the Muslim community of its collective heritage. We must concede that Muslims have been extremely unfair towards their resources. We cannot deny the fact that the administration of Waqf needs to be improved and unscrupulous practices need to be weeded out. However, such changes must be introduced after consulting legal experts, Islamic experts, and the community at large. Furthermore, any change must be for the betterment of the Waqf administration and not to the detriment of the Muslim community.

The present bill is an extremely oppressive, unconstitutional, and arbitrary piece of legislation that aims to target the minority community. As Muslim masses lack awareness regarding such legal intricacies, it becomes difficult to mobilize people to oppose such draconian moves. As responsible Muslim citizens of this country, it is our duty to make other Muslims aware of such attacks on our collective identity. Muslim lawyers, media houses, students, activists, and ulema must render their services in order to mobilize the whole community to express its emphatic disapproval of this bill.

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