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Polity & Governance
Mahesh

09/08/24 08:18 AM IST

Contentious amendments to the Waqf Act

In News
  • The Union government recently introduced a Bill in the Lok Sabha to amend the 1995 Waqf Act (1995 Act). 
Waqf law in India
  • In Islamic law, waqf refers to property dedicated in the name of God for religious and charitable purposes.
  • This can include any movable or immovable property set aside for the public good, embodying an act of piety that allows Muslims to extend their charitable deeds beyond their lifetime.
  • A waqf can be established through a formal deed or instrument, or a property can be deemed waqf if it has been used for religious or charitable purposes over an extended period.
  • The proceeds from such properties are typically used to maintain mosques, fund schools or provide for the poor.
  • However, once designated as waqf, the property cannot be transferred through inheritance, sold, or given away.
  • A non-Muslim is also allowed to create a waqf as long as the objective of creating it alligns with Islamic principles.
  • In India, waqfs are regulated by the 1995 Act. Waqf properties are identified and delineated through a survey conducted by the State government.
  • A survey commissioner, appointed under the Act, identifies these properties through local investigations, witness testimonies, and review of public documents.
  • Once identified, the properties are recorded in the State’s official gazette, and a list is maintained by the State Waqf Board.
  • Each waqf is managed by a mutawalli (custodian) who oversees its administration.
  • While similar to a trust established under the Indian Trusts Act of 1882, a waqf, unlike a trust, cannot be dissolved by a Board. 
Role of waqf board
  • The 1995 Act establishes Waqf Boards in each State to oversee the administration of waqf properties within their jurisdiction.
  • These Boards are considered juristic persons, allowing them to sue or be sued in a court of law.
  • Each State Waqf Board has a chairperson and includes one or two nominees from the State government, Muslim legislators, recognised Islamic scholars, and mutawalli of the waqfs.
  • The Act also mandates the appointment of a full-time Chief Executive Officer for each Board, who must be a Muslim by faith and hold at least the rank of Deputy Secretary in the State government.
  • The Waqf Board is authorised to manage waqf properties and take measures to recover lost assets. It can also sanction the transfer of immovable waqf property through sale, gift, mortgage, exchange, or lease.
  • However, this would require the approval of at least two-thirds of the Board members.
  • Amendments to the 1995 Act in 2013 further strengthened the Board’s authority and made the sale of waqf properties nearly impossible, as neither the mutawalli nor the Board had the right to sell a waqf property. 
  • In addition to the State Waqf Boards, the legislation also establishes the Central Waqf Council — a national advisory body under the Ministry of Minority Affairs.
  • The Council ensures the uniform administration of waqf properties across the country and is headed by the Union Minister of Minority Affairs.
  • It also advises the Union government on waqf-related issues, including policy development, implementation of waqf laws, and resolution of inter-State disputes.
Key changes in the proposed law
Definition of ‘waqf’ altered
  • Under the Bill, only lawful property owners who have practised Islam for at least five years are authorised to create ‘waqf’ properties through the execution of formal deeds.
  • This revision abolishes the ‘waqf by use’ concept — which permits a property to be considered waqf based on usage, even if the original deed was disputed.
  • Traditionally, waqf properties were often dedicated orally until formal documentation became standard practice.
  • To prevent any fraudulent waqf claims, the Bill stipulates, “Any government property identified or declared as waqf property, before or after the commencement of this Act, shall not be recognized as waqf property.”
  • Additionally, the law permits widows, divorced women, and orphans to be beneficiaries of proceeds from waqf assets.
Power reposed in District Collectors
  • The responsibility of surveying waqf properties, previously managed by survey commissioners under the 1995 Act, will now be assigned to district collectors or officers of equivalent rank.
  • To improve the accuracy of waqf property records, the Bill proposes a centralised registration system.
  • All information about waqf properties must be uploaded to this portal within six months of the new law’s enactment.
  • Moreover, any new waqf property registrations must be submitted exclusively through this portal to the Waqf Boards.
  • Notably, the Bill omits section 40, which previously granted waqf tribunals the authority to determine whether a property qualifies as waqf. Instead, it designates the district collector as the final arbiter in such matters.
  • Once a determination is made, the collector must update the revenue records and submit a report to the State government.
  •  However, the Bill makes it clear that the disputed property cannot be treated as a waqf property till the collector submits his final report.
  • This implies that until the government decides the issue, a Waqf Board cannot be in control of the disputed land. 
Inclusion of ‘non-Muslims’
  • One of the most contentious aspects of the Bill is the proposed inclusion of non-Muslims in key waqf institutions — the Central Waqf Council, State Waqf Boards, and waqf tribunals.
  • It empowers the Centre to appoint three Members of Parliament (two from the Lok Sabha and one from the Rajya Sabha) to the Central Waqf Council without specifying that they have to be Muslims.
  • Under the 1995 Act, the three MPs to be included in the Council had to be from the Muslim community. Similarly, as per the new Bill, State Waqf Boards have to include two non-Muslims and two women as members.
  • The composition of waqf tribunals has been changed from a three-member body to a two-member body.
  • The tribunal will now consist of a district judge and an officer of joint secretary rank to the State government.
  • Under the proposed law, tribunals must resolve disputes within six months, with a possible extension of an additional six months. 
Stringent financial oversight
  • The Bill empowers the Centre to “direct the audit of any waqf at any time by an auditor appointed by the Comptroller and Auditor-General of India, or by any officer designated by the Central Government for that purpose.”
  • The Waqf Boards are required to audit their accounts annually, selecting auditors from a panel constituted by the State governments.
  • Penalties will also be levelled upon mutawallis if they fail to maintain proper accounts. 
Judicial review
  • The proposed law allows courts to intervene in waqf disputes.
  • It removes the finality of decisions made by waqf tribunals, allowing aggrieved parties to appeal directly to the concerned High Court.
  • This is aimed at increasing judicial oversight and curbing instances of arbitrary exercise of power by Waqf Boards or tribunals. 
Source-The Hindu

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