WAQF AMENDMENT ACT 2024 - AN EXPLAINER
By Farhan Ahmad Naqvi
The present Modi Government has introduced Waqf amendment Bill of 2024 to amend the Waqf Act 1995 with a caption ‘further to amend Waqf Act 1995’, although it is not amendment but a new act in the garb of using word ‘amend’ as a camouflage.
The present concept of Waqf amendment Bill is also born out of the same womb as the CAA/NRC law and meant to disarm Muslims from one of their major religious rights to encompass a corpus for community, charity and religious purposes. This Bill aims to wipe out the rights to have Waqf institutions in Muslim hands. This is not an amending act but is a new act which drastically changes the entire basic concept of Waqf as propounded in Islamic jurisprudence.
The insincerity and guided mindset of the Bill becomes abundantly clear on reading 2nd paragraph of the title;
“There was a case made for the abolition of Waqfs in India in the late 19th Century when a dispute over a Waqf property ended up in the Privy Council of London during the days of the British Raj. The four British judges who heard the case described the Waqf as perpetuity of the worst and the most pernicious kind” and declared Waqf to be invalid. However, the decision by the four judges was not accepted in India, and the Mussalman Waqf Validating Act of 1913 saved the institution of Waqf in India. Since then, no attempt has been made to curb Waqfs.”
The word used to “Curb Waqf” is the utterance which speaks volumes about the intentions and desires of the framers of this amendment. The dictionary meaning of Curb is to control or limit or curtail or reduce. These words illustrate the hidden purpose of this exercise as to curb the Waqf institution.
Key features of Waqf (Amendment) Bill, 2024:
- Renaming of the Act: The Waqf Act, 1995, is renamed the Unified Waqf Management, Empowerment, Efficiency, and Development Act, of 1995 to emphasize improved management and development.
- Formation of Waqf: Waqf can be formed through declaration, but Waqf by the user is no more applicable.
- Waqf-alal-aulad cannot deny inheritance rights, including those of women heirs.
- Any government property identified as Waqf will cease to be so, and ownership disputes will be settled by the Collector and reported to the state government.
- The Waqf Board’s power to determine if a property is Waqf is removed, transferring property survey responsibilities to Collectors under state revenue laws.
- Central Waqf Council Composition: The Council will now include two non-Muslims, and MPs, judges, or eminent persons appointed to the Council need not be Muslims.
Before proceeding further it is necessary to place, in short, the concept of Waqf in Islam.
A Waqf plural Auqaf, also called a ḥabs, denotes the status of lands or tenements held inalienably as charitable endowment under Islamic law. It typically involves donating a building, plot of land or other assets for Muslim religious or charitable purposes with no intention of reclaiming those assets. A charitable Waqf may hold the donated assets. The person making such dedication is known as a Waqif (‘donor’) who uses a mutawalli (‘trustee’) to manage the property.
The term Waqf literally means ‘confinement and prohibition’, or causing a thing to stop or stand still. According to Islamic law, once an asset has been donated as Waqf it cannot be sold, transferred or given as a gift. Once a Waqif has verbally or in writing declared a Waqf property, it is legally conceived as the property of Allah and must be used to “fulfil public or family needs” as a charitable social service.
The key feature of this dedication is its perpetuity; the property once committed to Waqf belongs to the divine, its benefits are meant to serve one’s family, community, institution, or any pious cause indefinitely. Theoretically, to any good cause or purpose that secures any benefit to human beings.
The objective of the creation of Waqf must be religious and charitable. In various cases it has been held , by courts in the country that Waqf means detention of the corpus in the owner ship of God in such manner that its property may be applied for the benefit of society in general.
A Waqf property can fall into one of two categories: movable or immovable. A ‘movable’ asset includes money or shares which are used to finance educational, religious or cultural institutions such as madrasa (Islamic school) or mosques. The madrasa and mosque themselves are an example of an ‘immovable’ asset which refers to land or structures open for public use. An important function of the latter is also to provide shelter and community spaces to the poor, also known as the ‘mawquf alayh’ (Arabic) the beneficiaries. The concept of Waqf has played an integral role across cultures and societies, where it has served as a tool for both religious and social welfare.
Some of the key changes are:
Creation of Division in community by propounding fictitious cause
In section 3 of the Waqf amending act 2024 two new categories of Waqf were tried to be added i.e. Aghakhani Waqf and Bohra Waqf, which apparently is a crude attempt to subdivide Muslims of India into artificial sects which is foreign to Islamic values. The Aga Khan Foundation, which was founded by the Agha Khan, is inspired by the values of Islam but is not a religion in itself. Both of the above are Shia Muslims and their names, Aga Khan or Bohra is just for identification but not denoting some faith of religion except following Islam. This introduction of different names for these two categories is another crude attempt to create differences in the Muslim community.
It is an interesting fact to mention here that Late Justice Aziz Mushabbar Ahmadi (25 March 1932 – 2 March 2023), Retired. Chief Justice of India (1994 – 1997), was a non-practicing Dawoodi Bohra from Surat. Everybody knows him as just like another Indian Muslim and not as Bohra since it is just an Indian Muslim community having no special class or caste.
Erasing the concept of “Waqf by user”;
The most contentious point in the Bill is the omission of “Waqf by user clause” from the 1995 legislation which empowered the owners of Waqf properties that don’t have land ownership papers with their power of ownership. “Waqf by user” is a property that has been used for a religious or pious purpose over a long period of time, with the knowledge or consent of the owner, and is considered a Waqf.
The Waqf Act of 1995 defines Waqf as the permanent dedication of property for a religious, charitable, or pious purpose. It includes Waqf by user, even if there is no evidence of an express dedication. Examples of Waqf by user are land used to maintain a mosque or a trust that is a public Waqf by user.
The Waqf Amendment Bill of 2024 removes the concept of Waqf by user. The bill states that a property is only considered a Waqf if there is a valid waqfnama, and that a person must have practiced Islam for at least five years and owned the property to declare a Waqf. This is a totally unlawful idea;
The clause that only a Muslim of five years can make an endowment raises suspicion over the Bill’s intent. I am not aware that there exists any government organization authorized under any statute existing in the country which prescribes issuance of such type of a religious status certificate determining religion that whether a person was a practicing Muslim/Sikh/Hindu/Christian, Buddhist or Jain for last five years.
It is a domain of that person himself to declare his religion and not the authorities of State except the caste certificates issued to different castes in Hindus to ascertain classification for grant of reservation. Concept of issuing certificate by government indicating the holder’s religion does not exist.
Abolition of concept of Waqf itself once inheritance right remains
The proposed insertion of Section 3A states that the creation of a waqf-alal-aulad “shall not result in the denial of inheritance rights of heirs, including women heirs, of the waqif”. This proposed amendment undermines the religious sanctity of Waqf and introduces legal ambiguity into a practice that has been clearly defined in Islamic law for centuries.
Since the creation of waqf-alal-aulad is considered a religious practice, any statutory interference that alters its fundamental nature may violate the constitutional right to religious freedom. A charitable Waqf may hold the donated assets. The status of lands or tenements which hold real property inalienably as charitable endowment under Islamic law it cannot be inherited as a normal property. Once inheritance is allowed then it is diametrically opposed to the concept of Waqf itself. The heirs of Waqif can get benefits from the property, as per the Waqf deed, but as charity only during their lifetime.
Empowering the Collector, a State agent, to determine status of a property proposed for dedication
Under section 3 C (2) of the Waqf amending act 2024 the collector, an agent of the State government, is being given very wide and uncontrolled powers to declare any Waqf property as Government property. The same shall be referred to the Collector having jurisdiction who shall make such inquiry as he deems fit, and determine whether such property is a Government property or not and submit his report to the State Government. In case the Collector determines the property to be a Government property, he shall make necessary corrections in revenue records and submit a report in this regard to the State Government. The State Government shall, on receipt of the report of the Collector, direct the Board to make appropriate correction in the records.
Removing the word Muslim altogether creates more suspicion over the intent;
By removing the word Muslim altogether from section 23 of the Waqf Act 1995 puts a question mark on the intention.
Section 23 of the Waqf Act 1995 related to appointment of Chief Executive Officer and his term of office and other conditions of services.
23 (1) There shall be a full-time Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government, and in case of non-availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation.
Post the 2024 amendment, Section 23 reads
“(1) There shall be a full-time Chief Executive Officer of the Board to be appointed by the State Government and who shall be not below the rank of Joint Secretary to the State Government.”.
In comparison, the provision found in section 3 and 6 (3) of The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 can be perused:
Section 3 – No person shall, unless he is a Hindu by religion, be eligible for being or continuing as a member of the Board or Executive Committee or as Chief Executive Officer or as an employee of the Temple and every person shall cease to hold office or to exercise any power or discharge any function as such when he ceases to be a Hindu.
Section 6 ……. (3) Where a member of the Board cannot perform his duties as such by reason of the fact that he is not a Hindu, the person available next below him in this behalf shall be a member of the Board for the time being.
Section 3, 6 and 19 of The Uttar Pradesh Sri Kashi Vishwanth Temple Act, 1983 strictly prohibits a non Hindu to be included as board member or in Executive Committee or as Chief Executive Officer or even as an employee of the Temple.
This is patently discriminatory as if Hindu religious institutions can only have Hindu members and even only Hindu employees, there is no reason why the amended Section 23 should allow non Muslims to be on Wafk Boards.
Diluting Muslim representation in the Wafk Council
The section 9 of the principal act which relates to constitution of central Waqf council for the purpose of advising the Central Government, the State Governments and the Boards on matters concerning the working of Boards and the due administration of auqaf. In it there is a proviso added under sub clause (g) of sub section (2) which reads as under;
Provided that two of the members appointed under clause (c) shall be women:
Provided that two members appointed under this sub-section shall be non-Muslim.
This section creates more doubts. Because the other members added in the same provision are Union Minister, three MPs, eminent scholars of Muslim law, two Judges of Supreme court of High court, one advocate of national eminence etc. who do not necessarily have to be Muslims.
Hostile discrimination not permitted under the Constitutional mechanism
Ours is a country ruled by Constitution where part III deals with fundamental rights whereby article 25 to 30 relates to religious freedom as well article 14 which embodies equality before law and prohibits hostile discrimination but allows reasonable classification. The constitutional mandate, is not to discriminate on the ground of religion, and this amendment violates this constitutional mandate.
Although it is commonly known that Waqf properties were being misused by corrupt trustees but to tackle such situations there are provisions in the existing law to punish them. Additionally more stringent provisions may be inducted to tackle such detrimental situations. The corrupt have been getting patronage from successive governments. The present dispensation should set an example by acting against those misusing a pious practice for personal gains which will be one small step and pave way towards trust building.
Instead, floating the Bill without adequate consultation with stakeholders is an attempt to encroach upon the Muslim community’s religious rights. It is to be pointed out here that the amendments will reduce Waqf Boards to “mute spectators” as the Centre infringes upon a host of religious freedoms.
The amendments aim to “Curb” the powers of Waqf to virtually nil and Waqf board to a defunct body. It will make the Collector, who is an agent of the State, as the sole authority to control 8.7 lakh acre land across India with an estimated value of Rs.1.2 lakh crore without applying the tougher Land acquisition proceedings and aims to hand over these lands to their own favourites.
S. Farman Ahmad Naqvi is a Senior Advocate practising in the Allahabad High Court.