The cacophony on The Waqf (Amendment) Bill, 2024, has been escalating amid political, religious and legal circles, ever since the government introduced the controversial Bill, in Lok Sabha, on August 8, 2024.
The Bill proposes major Amendments in The Waqf Act, 1995, by introducing sweeping changes in the governance and regulation of waqfs in India. The Bill proposes to rename the Act as The Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995. However, the Bill has been met with strong criticism from Muslim community and Opposition parties, who have termed it as unconstitutional, divisive and anti-Muslim.
The Waqf is an inalienable charitable endowment established under Muslim jurisprudence. It’s also known as mortmain property. Through Waqf, Muslims give their personal property for a specific purpose- religious, charitable and welfare of the community. The ownership of the property is vested in the name of Allah. However, the beneficiaries of the property can be varied. Once a property is declared as Waqf it cannot be reversed.
During British India period, the Waqf matters were largely governed by The Muslim Waqf Validating Act, 1913. After independence, The Central Waqf Act was enacted for the regulation of Waqf, which was further replaced by The Waqf Act, 1995. This act constituted Waqf Boards to designate a property as Waqf; prescribed imprisonment upto two years for encroachment of Waqf property; and prohibited the sale, gift, exchange; mortgage or transfer of Waqf property. The government has now proposed The Waqf (Amendment) Bill, 2024.
With regard to the Bill, there are wide speculations amid Muslims and the Opposition parties; wherein, it is apprehended that the government will usurp the Waqf properties.
Congress MP, K.C. Venugopal accused the government of violating freedom of religion and attacking the federal system through it. “This is a draconian law and a fundamental attack on the Constitution”, said Venugopal. He further said, “We are Hindus but at the same time, we respect the faith of other people. This Bill is specialised for the Maharashtra and Haryana elections in mind.”
Venugopal also said,
“Through this Bill, they are putting a provision that non-Muslims will also be the members of the Waqf Governing Council….. Next you will go for Christians, the Jains and Sikhs…. People of India will not buy this kind of divisive politics now.”
Samajwadi Party chief Akhilesh Yadav said the Bill was being introduced to appease the BJP’s hardcore supporters.
The Telangana Waqf Board, in a special meeting in Hyderabad, has rejected the proposed Bill. The meeting was called by chairman of Waqf Board Azmatullah Husaini and attended by Hyderabad MP Asaduddin Owaisi, among others. The Board unanimously resolved to reject the proposed amendments and released a statement “It is obvious to the Board that the proposed Bill has been prepared with a particular mindset and aims at destroying the autonomy of the Waqf Board and the very institution of Waqf by bringing the Waqfs under the total control of collectors who will be free to claim and determine any Waqf property as government property and give directions to Mutawallis (custodian) and its compliance will be binding on Muttawalis.”
It was also resolved,”The Bill will destroy the structure of Waqf Council and Waqf Boards by introducing essentially two non-Muslim members and leaving the scope for the Council and Board to eventually become non-Muslim dominated.”
The Bill has been referred to the Joint Parliamentary Committee, comprising 31 members, headed by BJP MP Jagdambika Pal, which will deliver its report before the beginning of the winter session, which is likely to be scheduled in the last week of November.
Senior Advocate Mahalakshmi Pavani- President, Supreme Court Women Lawyers Association, said, “Previously, the Waqf Act of 1995 was established to improve the management of waqf properties and related matters. However, its implementation has not significantly enhanced the administration of these properties.
In 2013, comprehensive amendments were made based on recommendations from the High-Level Committee led by Justice (Retired) Rajinder Sachar, and the Joint Parliamentary Committee on Waqf. Despite these changes, further improvements are needed to address ongoing issues such as the powers of State Waqf Boards, property registration and surveying, encroachments, and even the definition of “waqf.”
“Several factors are responsible behind the intention and needs of the new Waqf (Amendment) Bill, 2024 discussed below.This Bill aims to enhance the management and development of waqf properties by:
(a) Renaming the Waqf Act of 1995 to the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995 (Clause 2)
(b) Defining “waqf” as property given by a person practicing Islam for at least five years.
(c) Ensuring that waqf-alal-aulad does not infringe on women’s inheritance rights.
(d) Removing provisions related to “waqf by user.”
(e) Assigning the survey of waqf properties to a Collector or a Deputy Collector-level officer.
(f) Expanding the composition of the Central Waqf Council and State Waqf Boards to include Muslim women and non-Muslims.
(g) Establishing separate Boards for Boharas and Aghakhanis.
(h) Including representation from various Muslim sects and backward classes.
(i) Centralizing waqf registration through a central portal.
(j) Implementing a detailed procedure for recording waqf properties according to revenue laws.
(k) Removing the Board’s power to decide if a property is waqf.
(l) Reducing the annual contribution from 7% to 5% for waqfs with an income of at least five thousand rupees.
(m) Requiring mutawallis to file accounts through a central portal.
(n) Reforming the Tribunal structure to include two members and allowing appeals to the High Court within ninety days.
(o) Making the Limitation Act, 1963 applicable and removing special provisions related to evacuee waqf properties.
The Bill aims to address these points comprehensively to achieve effective management and development of waqf properties.
Further, above-stated aspects along with lacking adequate mechanisms for transparency and accountability in the management of Waqf properties, Allegations of corruption, mismanagement, and illegal transfers were the driving reasons which led to the introduction of this new Bill.”
Mahalakshmi further said, “These days, no religion gets ready for a change in law whenever it is related to their interests. Following the same trend, even the Opposition in the Lok Sabha on August 8, 2024, the day of it’s introduction strongly protested against the introduction of this Bill, calling it an attack on the Constitution and aimed at targeting Muslims, although it is not. It is focused on the betterment of the Muslims and their conditions in India.”
“Waqf properties are not generating enough profit for the community, and there have been several allegations of corruption and mismanagement since Independence. Each state has its own story to tell, from Uttar Pradesh to West Bengal. In September 2022, AAP MLA Amanatullah Khan, Delhi Waqf Board chairman, was arrested for alleged misappropriation of waqf funds and other irregularities. Last month, the Centre seized 123 waqf properties.”
“There are numerous instances in the past to substantiate that the waqf board has become a tool to save the interest of elite (Ashraaf) Muslims and ordinary Indian Muslims got nothing out of it.Ashraaf have been serving their own interest by using the numerical strength and marginalized status of Pasmanda (backward, Dalit, and tribal Muslims) in the name of minority politics. The waqf board is no exception. Like all other Muslim institutions in India, waqf boards are also ruled by Ashraafs and have negligible participation of Tribals, Dalits and Backward Muslims.”
“These incidents violated the main purpose of the huge waqf board universe in India which was to serve the Muslim community. But even as the waqf board has emerged as the third largest owner of land in the country, Indian Muslims are struggling for basic needs and fare worse than Dalits on several socio-economic indicators. Waqf owners today are India’s largest urban landlords.”
“Keeping all these issues in mind and to end this misuse of the provisions of the old Waqf Act, and to further address certain gaps and challenges in the management and regulation of Waqf properties in India – All these main factors led to the introduction of this Bill.
Justifying Government’s stand, Mahalakshmi said, “The Government is correct in putting a provision that non-Muslims shall also be the members of the Waqf Governing Council.It is not a direct attack on freedom of religion of the minority community because it is for the better welfare of the Muslims of this country and to prevent the misuse of the laws.
The Government’s stated intention is to promote inclusivity and transparency in the system of Waqf Board and its management and operations,it is crucial for them to balance this need for transparency and accountability with all due respect and sensitivity towards religious feelings and religious autonomy of the Muslim community to avoid being misunderstood or misperceived by the Muslim community.”
With regard to Government’s hidden agenda behind the Bill, she said, “This view is based on several factors:
1. Electoral Strategy: Maharashtra and Haryana are states with significant Muslim populations. Introducing a Bill that directly affects a minority community could be seen as a way to polarize voters along religious lines, thereby consolidating the support of the ruling party’s core voter base, which is largely Hindu.
2. Appeasement of Hardcore Supporters: The BJP, being a party with a strong nationalist and Hindu-majoritarian base, might be perceived as using this Bill to appease its hardcore supporters who advocate for a more assertive stance on issues related to minorities.
The timing of the Bill’s introduction, close to the election cycle, has added to the suspicion that it is being used as a political tool. By introducing controversial legislation, the government might be aiming to shift the political discourse and rally its supporters around a common cause. While the Government may argue that the Bill is intended to improve governance and protect Waqf properties, the political motivations behind its introduction cannot be ignored. If the Bill leads to social polarization, it could have long-term implications for communal harmony in the country.”
Maulana Kalbe Jawad, a noted scholar and social activist, said, “The intention is clearly to usurp Waqf properties by malafide and unconstitutional amendments impinging on the freedom of religion of the Muslim Community. This is evident from the obvious deletion of the concept of Waqf by User and Waqfs on Evacuee properties and the limitations placed on the Waqfs ul Aulad where the Government has insidiously crept in to meddle with it. Further absurd impractical time limits and conditions have been placed in the Bill for registration of Waqfs.”
“The amendment will destroy the social security fabric that the community has through Waqfs where orphanages, educational institutions, homes and other charitable measures for the elderly and widows are established through Waqfs, not to mention places of worship i.e. mosques and Imam Bargahs.”
“The Opposition in the Lok Sabha on August 8, 2024, the day of its introduction, strongly protested against the introduction of this Bill, calling it an attack on the Constitution and aimed at targeting Muslims. They also urged the Government to withdraw the Bill. How do you view this scenario? The Waqf Amendment Bill requires condemnation in the strongest terms and deserves to be recalled in its entirety.”
“Through this Bill, the Central Government is putting a provision that non-Muslims shall also be the members of the Waqf Governing Council. Do you think that it’s a direct attack on the freedom of religion of the minority community?”
“It’s a direct attack as the Government has got a hidden agenda behind this move, mainly keeping in view elections in Maharashtra and Haryana, as well as appeasement of BJP’s hardcore supporters, to get votes.
Maulana further said, “The agenda of the Government is two fold. They want to usurp the properties of Waqfs throughout the country which will then be given to the Adanis and Ambanis who are close to the BJP. The Waqf land holdings in the country are huge and very valuable. The amendment is a part of the usual divisive policy of the BJP to put Hindus against Muslims by their false narrative that Waqf properties are encroachment on Government land, when the truth is that Waqf properties are personal properties of individuals who dedicated them to God for charitable purposes and thereby decreased the inheritance of their own future generations.”
Maulana also said,”The proposed Bill is an act of direct interference in the religious affairs of the Muslims. He strongly protested the proposed provision of ‘registration of deed’ of the Waqf property. In India, there are thousands of Waqf properties existing from ancient times. How will the old deeds be found; even if those are found, it shall be the discretion of the Collector to accept or reject. This phenomenon shall give room to arbitrariness and discriminatory practices. More so, the order of the Collector shall not be maintainable in the court of law.”
According to Maulana, “What can be the greater persecution upon the Muslims that the issues of religious nature are now being usurped by government functionaries. It is a planned and scheming conspiracy.”
Advocate Tualia Rehman said, “The Bill proposes a number of changes to the 1995 law, such as permitting Muslim women to hold elected office on Waqf boards and requiring land to be confirmed prior to being designated as Waqf property by a board. Although the All India Muslim Personal Law Board (AIMPLB) deemed the measure “unacceptable,” INDIA parties vowed to oppose any changes made to the Waqf Act.
Both factions of the Jamiat Ulema-e-Hind (Arshad Madani and Mahmood Madani) slammed the Bill and expressed grave concerns over the proposed legislation. One Jamiat faction’s leader, Maulana Arshad Madani, asserted that the government wishes to alter the nature and status of waqf holdings to facilitate the easier acquisition of them.”
“A collector raj will be established after the new amendment is passed, and the Waqf Tribunal’s determination of what property is waqf and what is not will not be definitive. Regarding ownership, the collector’s choice will be final, according to Madani.
This right was previously held by the Waqf Tribunal. Additionally, the proposed Waqf Act modification violates Articles 14, 15, and 25 of the Constitution and the freedom of religion guaranteed by it.” The ineffective administration of Waqf properties has drawn criticism for the current Waqf Act. These assets have frequently been the target of financial irregularities, encroachments, and poor administration despite being granted for religious or charity causes. Unauthorized utilization of Waqf properties and encroachments have been major issues. Properties meant for religious or charitable purposes have occasionally been stolen. Financial mismanagement and a lack of responsibility in the utilization of Waqf property funds have been reported. It has been questioned whether the accountability provisions and financial audits under the existing Act are effective.”
“The Waqf (Amendment) Bill’s inclusion of non-Muslims in the Waqf Governing Council can be a contentious issue since it raises concerns about the intersection of religious autonomy and governance.”
“The following viewpoints should be taken into account when determining whether this clause directly violates the right to freedom of religion and whether political motivations may be at play:
Governance and Religious Autonomy: Principle of Religious Autonomy: Islamic customs and principles have historically guided the management of waqf properties. The claim made here is that allowing non-Muslims to serve on the Waqf Governing Council could infringe upon Muslim communities’ religious right to manage their charitable holdings and funds.”
“Autonomy vs. Representation: In contrast, the addition of non-Muslims might be interpreted as a step in the direction of increased inclusivity and representation. Advocates may contend that a diverse governing council would improve transparency and accountability by ushering in different points of view. Effects on the Right to Religious Minority communities’ concerns: The appointment of non-Muslims to manage Waqf properties may be seen by many in the Muslim community as a challenge to their authority over religious and charitable assets, and as a violation of their right to conduct their own affairs in accordance with their religious convictions.”
“Legal and Constitutional Protections: The Indian Constitution guarantees minority communities’ rights as well as religious liberties. In view of these fundamental rights, each legislative modification that affects the autonomy of religious institutions ought to be carefully examined.”
“Political Motivations and Electoral Considerations: Political motivations and electoral considerations are frequently examined in the context of legislation. The Bill’s provisions and timing could be interpreted as calculated attempts to sway public opinion, particularly in areas with complicated and important political dynamics like Maharashtra and Haryana.”
“Vote bank politics and appeasement: Critics might argue that the action is intended to appeal to specific voter bases or to solve political issues, such as gaining an election edge or placating particular segments of the ruling party’s support base. Different stakeholders’ reactions to the Bill may be influenced by their sense of a hidden intent.”
Advocate Jamal Usmani said, “BJP- ruled government has severally been acting on its agenda of Muslim bashing openly and discreetly both ways. It’s not only the Waqf matter, there have been hate speeches from BJP ministers sitting on Constitutional seats, including the prime minister Narender Modi, Home Minister Amit Shah, UP CM, Yogi Adityanath, Assam CM, Hemanta Biswa Sarma.”
Jamal further said that on August 22, 2024, Assam’s Revenue and Disaster Management Minister, Jogan Mohan tabled a ‘disastrous’ Bill, to repeal The Assam Moslem Marriages and Divorces Registration Act, 1935, and the Assam Repealing Ordinance, 2024. The Assam assembly on August 29, 2024, passed this Bill. CM Himanta Biswa Sarma said, “Our aim is to do away with the Qazi system. We want to bring registration of Muslim marriages and divorces under the government system.”
Jamal questioned whether Sarma has guts to quash the religious and conventional rituals of the tribal natives of North-Eastern states? Not only this, there are recurring instances of hate speeches, lynching by so- called cow- vigilantes, cancelling of Friday prayer break for Assam’s Muslim legislatures. Ever since, BJP came to power, Muslim bashing on one pretext or the other is writ large.
Jamal further questioned, “Will the government appoint Muslim members in Hindu maths, char dhams and other such committees? Will the government appoint Hindu members in the management affairs of Sikhs, Christians, Jains, Buddhist, Bahaies and Parsies? If not then why to polarise? “Unity is strength”. Divided we fall, united we stand. Let’s make India strong through absolute unity”, insisted Jamal.
