About the Author: Anjali Sharma is a Student of the Rajiv Gandhi National University of Law, Patiala.
INTRODUCTION
The Waqf Amendment Bill 2024, introduced by the current federal government, is one of the significant watershed points of Indian legislative history. The bill intends to amend the Waqf Act of 1995, which has witnessed a counterpart of controversy ever since the year of its enforcement. This blog will shed light on the implications of the proposed changes to waqf properties as well as the Muslim community and the historical backdrop of waqf legislation in India.
HISTORICAL CONTEXT OF WAQF LEGISLATION IN INDIA
A waqf, and its plural form awqaf, is another name for property dedicated to charity purposes. It is essentially a form of gift whereby Allah becomes the possessor of the property. It is considered an Islamic pre-emptive law that the waqf asset cannot be lessened or altered in the future. Furthermore, there have been huge changes to the administration of waqf property, especially since the colonial administration began to take a systematic structure and posited the need for a more governing body.
Colonial ERA Changes: Several regulations enacted during British colonization fundamentally altered the management of waqf properties. Regulation XIX of the Bengal Code of 1810, the Mussalman Wakf Act 1913, and the Charitable and Religious Trusts Act of 1920 were some of the acts.[1]
These regulations have undermined local sovereignty, ostensibly in a bid to bring waqf properties completely under government control. Given that in their colonial economy, land had served as the chief motivation for their quest for power, the economic investment of the British government played a prominent role in shaping policy.
Waqf Law Post-Independence: The Central Waqf Act was enforced uniformly in 1954 after the independence of India in 1947. To overhaul waqf administration, this act established Waqf Boards with extensive authority to supervise waqf properties around the nation. The Central Waqf Act was uniformly implemented in 1954 following India’s independence in 1947.
IMPORTANT ASPECTS OF THE PRESENT WAQF ACT
- According to the present Waqf Act, the following are highly valued:
Alienation Prohibition: Waqf property may not be sold or transferred without board approval. - Provisions for Restoration: These include provisions about the Waqf Board’s receipt of government-owned properties.
- The intention behind these provisions was to protect waqf properties and guarantee their continued charitable use.
OVERVIEW OF THE WAQF (AMENDMENT) BILL, 2024
The Waqf (Amendment) Bill, 2024, seeks to change several of the requirements of the current statute and introduce new features. Although it introduced certain positive elements, it has come under fire for attacking community governance over waqf holdings in a broad manner.[2]
PROGRESSIVE ASPECTS OF THE BILL
Independent Boards for Bohra and Agakhan Communities: This clause allows these communities to manage their waqf according to their beliefs while acknowledging theological differences within Islam.
Gender Equality: By permitting female representation on waqf boards, the legislation ensures gender equality in religious governance.
Inclusion of Underrepresented Groups: This is done to make more Muslim groups and sects represented.
CONCERNS REGARDING THE PROPOSED AMENDMENTS
Notwithstanding its progressive aspects, the measure is criticized for weakening waqf boards’ independence and power. The main issues are as follows:
Reduces Board Powers: The Bill gives district collectors, who may not always be motivated to act in the best interests of the community, the authority to choose survey commissioners and proclaim properties as waqf, rather than the Board.
Ambiguities regarding Legal Status: Only with proper authority can a property be declared waqf under this statute if the owner has followed Islam for five years. One unclear idea is likely to lead to legal cases and disputes regarding eligibility or otherwise. The reforms being advised raise doubts over possible bias and potential conflict of interest by granting government officials the authority to resolve conflicts involving Waqf properties.
Prospective consequences for Waqf Properties: The Waqf (Amendment) Bill has far-reaching negative impacts. Waqf properties stand at a greater risk of encroachment and mismanagement if the authority of the waqf boards is curtailed and controls invoked by the government increased.
Threats to Community Control –
Increased Government Control: Due to ample powers enjoyed by district collectors for the proclamation and administration of waqfs, the provisions of the bill may lead to greater involvement by the state in religious affairs.
Obstacles in the Law: Strained legal battles over unclear powers to declare properties a waqf may deprive funds from community welfare programs. These amendments present serious constitutional questions about religious liberty and autonomy.[3]
Constitutional Concerns: These changes present serious constitutional issues regarding religious autonomy and freedom. Article 25 of the Indian Constitution guarantees every religious sect the right to create institutions for religious reasons. The power and authority afforded to a government appointee over waqfs may thus infringe on the rights concerned.
COMPARATIVE ANALYSIS: HISTORICAL VS CURRENT LEGISLATION
To appreciate the true import of the Waqf (Amendment) Bill, it becomes important to compare it with the previous legislation:
Feature | Current Waqf Act (1995) | Proposed Amendment (2024) |
Authority to Declare Waqfs | Board has authority | Authority transferred to district collectors |
Gender Representation | No specific mandate | Mandatory inclusion of women members |
Alienation Provisions | Strict prohibition without board approval | Weakened protections against alienation |
Legal Framework | Established processes for dispute resolution | Increased government oversight in adjudication |
Implications of Muslim Community Autonomy: Although this comparison shows certain progressive elements, such as the representation of women, the overriding trend seems to be the transfer of power from community-based governance towards strengthened state authority. Though the proposed revisions could have a significant impact on Muslim community control over religious institutions, it is feared that weakened community oversight mechanisms could simply entrench government power and lead to waqf decisions that do not reflect the needs and interests of communities.
Economic Impact: The bill is going to sow serious problems on the economic front. The fuzzy wording and authority may make the bill the subject of actual or prospective legal complications or increase the roles of regulation in government. Resource allocation is either diverted from community development or is in the litigation phase. Property Management: Bureaucratic barriers resulting from governmental authority may compromise the capacity to manage waqf holdings.[4]
Public Response and Political Dynamics: This has now caused division among various sections of Indian society. Although some political groups feel that these changes are required for the waqfs to be properly managed and responsible, community leaders are worried about the possible erosion of rights.
CONCLUSION: A CALL FOR COMMUNITY ENGAGEMENT
Two distinct aspects of the Waqf (Amendment) Bill 2024 are directed toward the Muslim community in India. Though it is claimed that this Bill’s main objective is the participation and representation of its community in the management of waqf institutions and properties, it is, in reality, a very serious attack on property rights and the community’s autonomy.
It is fundamental to engage all stakeholders interested, including legislators, lawyers, and civic leaders for this tentative improvement. “In framing any such reform for the better future of a waqf in India whilst practicing their religious beliefs, the interest of each party involved must be duly considered.” In a mixed society in India, one is afraid that this new brownish period will ensure that any legal reforms are based on social justice while upholding religious autonomy.
References:
[1] Muhammad Haneefa, ‘The Educational Status of Indian Muslims a Decade after the Sachar Committee Report’ (2020) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3647513> accessed 02 January 2025
[2] P S Munawar Hussain, Muslim Endowments, Waqf Law, and Judicial Response in India (Routledge 2020)
[3] George C Kozlowski, Muslim Endowments and Society in British India (CUP 1985)
[4] ‘Allies Backing, Waqf Bill Tabled, Sent to JPC’ The Times of India (09 August 2024) <https://timesofindia.indiatimes.com/india/allies-backing-waqf-bill-tabled-sent-to-jpc/articleshow/112386638.cms> accessed 02 January 2025