• The Kerala Assembly unanimously adopted a resolution against the proposed amendment to the Waqf Act by the Centre.

• The resolution alleged that the proposed Bill, which is now under the consideration of the Joint Parliamentary Committee, violates the fundamental rights, right to belief, federalism, secularism, and democracy.

What is the meaning of ‘Waqf’?

• ‘Waqf’ refers to properties dedicated exclusively for religious or charitable purposes under Islamic law, and any other use or sale of the property is prohibited. 

• Waqf means that the ownership of the property is now taken away from the person making Waqf and transferred and detained by Allah. ‘Waqif’ is a person who creates a waqf for the beneficiary. 

• As Waqf properties are bestowed upon Allah, in the absence of a physically tangible entity, a ‘mutawalli’ is appointed by the waqif, or by a competent authority, to manage or administer a Waqf. 

• Once designated as waqf, the ownership is transferred from the person making the waqf (waqif) to Allah, making it irrevocable.

Issues with Proposed Waqf (Amendment) Bill, 2024

• The Waqf (Amendment) Bill, 2024 and the Mussalman Wakf (Repeal) Bill, 2024, introduced in the Lok Sabha on August 8, 2024, aim to reform the management of Waqf properties in India. 

• The Waqf (Amendment) Bill, 2024 proposes to shift the management of Waqf properties from Waqf Boards and Tribunals to state governments. This centralises control, ensuring that state authorities have more direct oversight of Waqf properties.

Key provisions of the Waqf Amendment Bill 2024:

• Renaming of the Parent Act: The Waqf Act of 1995 will now be known as the Unified Waqf Management, Empowerment, Efficiency, and Development Act of 1995, reflecting the broader scope and objectives of the amendments.

Waqf Formation: Waqfs can be formed through three methods:

i) Declaration: A formal statement to create a waqf. 

ii) Recognition of Long-term Use: Properties used for religious or charitable purposes for a long period can be recognized as waqf. 

iii) Endowment after Succession Ends: When there is no heir, properties can be endowed as waqf. 

• Only practicing Muslims for at least five years, with mandatory property ownership, can declare a waqf.

• Government Property: Government-owned properties that have been declared as waqf will be reverted to state ownership. In cases of dispute regarding ownership, the district collector will have the authority to determine the rightful ownership of the property.

• Waqf Property Determination: The Waqf Board’s power to determine waqf properties is removed under this amendment, transferring this responsibility to state authorities.

• Waqf Survey: District collectors will now conduct waqf property surveys under state revenue laws, centralizing the survey process with state governments.

• Central Waqf Council: The Council will include two non-Muslim members in its composition, broadening representation.

• Membership criteria for MPs, judges, and other eminent persons no longer require them to be Muslims. However, Muslim representation remains, with at least two women mandated to be part of the Council. 

• Waqf Boards: State governments will now appoint Waqf Board members, ensuring representation from non-Muslim members and Muslim sub-communities like Shias, Sunnis, and backward Muslim communities. Women representation is mandatory, reflecting a push for gender diversity.

• Tribunal Composition: The bill removes the requirement for Muslim law experts on Waqf Tribunals. Tribunals will now consist of a District Court judge and a state officer of joint secretary rank.

• Appeal Process: Tribunal decisions can now be appealed to the High Court within 90 days, providing a legal pathway for disputes regarding waqf properties.

• Powers of the Central Government: The central government is empowered to set rules on registration of waqfs, maintenance of waqf accounts, and Waqf Board proceedings.

• Audits of waqf properties and accounts can be conducted by the Comptroller and Auditor General (CAG) to ensure transparency. 

• Separate Waqf Boards: The Bill allows for the creation of separate Waqf Boards for specific Muslim sects, including the Bohra and Agakhani sects, recognizing their distinct religious and social practices.

Criticisms on the proposed amendments:

• Infringement on Religious Rights: Critics argue that the Bill infringes on the constitutional rights of minorities, particularly concerning religious freedom under Articles 14 (right to equality), 25 (freedom of religion), 26 (freedom to manage religious affairs), and 29 (protection of interests of minorities). 

• The mandatory inclusion of non-Muslims on Waqf boards is seen as direct interference in the management of religious properties by the Muslim community.

• Increased Government Control: The Bill centralises control over Waqf properties by granting significant powers to state authorities, including district collectors. This shift is perceived as bureaucratic overreach, potentially leading to delays, inefficiencies, and legal challenges in property management and dispute resolution.

• Lack of Community Consultation: The process of formulating the Bill has been criticised for lacking adequate consultation with Muslim stakeholders and community leaders. This raises concerns about the Bill’s legitimacy and acceptance within the Muslim community, as their voices were not sufficiently heard during the drafting process.

• Exclusion of Historical Context: The Bill removes provisions for recognising “Waqf by user”, which allows for the acknowledgment of properties that have historically been used for Waqf purposes without formal documentation. Critics argue that this could jeopardise many properties that are integral to the community’s religious and cultural heritage.

• Potential for Increased Disputes: By removing the authority of Waqf Tribunals and transferring property determination to district collectors, the bill may inadvertently lead to an increase in disputes over waqf properties. This could complicate the resolution process, as district collectors may not possess the specialized knowledge required to handle such matters effectively.

• Concerns Over Non-Muslim Representation: The requirement for non-Muslim members on Waqf boards has been met with resistance, with critics arguing that such representation may undermine the integrity of the boards. There are concerns that non-Muslims may lack a proper understanding of Islamic law and practices, which could lead to decisions that do not align with the community's religious values and needs.

(The author is a trainer for Civil Services aspirants.)