Waqfs In India: Past and Present
Waqfs in India have a chequered history. From supportive Mughal rulers to an indifferent British bureaucracy to regulatory post-independence Indian governments, it has been a long journey. At the time of India’s independence, there were different waqf laws for different regions in the country. A need was felt to have a common and comprehensive legislation applicable throughout the country. With the efforts of Moulana Abul Kalam Azad, the Central Waqf Act was enacted in the year 1954. It later transpired that this Act had many limitations and inconsistencies, thus paving the way for the much more elaborate Waqf Act, 1995. Varied experiences and difficulties faced while implementing this Act revealed that even this Act was not totally effective in preventing the encroachment, alienation and mis-use of waqf properties.
With the efforts of Mr. K. Rahman Khan, then Minorities Welfare Minister and keeping in view the recommendations of the Sachar Committee Report, 2006, a much more powerful Amendment to the Waqf Act, 1995 was enacted in the year 2013. The Waqf (Amendment) Act, 2013 promised to deliver efficacious solutions to many vexatious issues faced by the waqfs. Over a period of time, the 2013 amendment did bring about a marked improvement in streamlining the administration of the auqaf (plural of waqf), even though it was not immediately perceptible. It is apparent that the streamlining of the waqf administration has been a continuous process with a trial-and-error approach to legislations. When this corrective process is stretched to decades, obviously, the thieves would have run away with some booty.
The Waqf (Amendment) Bill, 2024
It is trumpeted that the Waqf (Amendment) Bill, 2024 which was recently introduced in the Parliament and which has been referred to the Joint Parliamentary Committee, will strengthen the Waqf Act, 1995. It is claimed that the amendments will plug the loopholes and will provide a stronger administration. What is the reality? When we read the amendments closely, it becomes clear that the contrary is true. The powers of the State Waqf Board are diluted and the Waqf Act, 1995 appears weakened to some extent. Let us examine a few of the amendments.
A Few of the Amendments
1) Only a person practicing Islam for at least five years can dedicate any movable or immovable property. In the existing Act, any person could dedicate.
2) Waqf by user clause is omitted. Many lands used as Khabrastan, Dargah, Ashoorkhana, mosque etc., from the past many decades, including those from pre-independence days, will be affected.
3) Any government property identified or declared as waqf property shall not be deemed to be a waqf property. In reality, government institutions are one of the major encroachers of waqf properties and over the years, Waqf Boards have been making unsuccessful efforts to recover such properties.
4) Collector will make enquiry and determine whether the property is a government property or not. It is possible that in some cases, the encroacher becomes the judge! Will a government officer decide the matter against the government?
5) The Survey of the Waqf properties will be done by the Collector instead of the Survey Commissioner. The provision for a second or subsequent survey of waqf properties has been omitted.
6) The State government may, if it deems necessary, establish a separate Board of Auqaf for Bohras and Aghakhanis. The Waqf Act, 1995 (hereinafter called the Principal Act) provided for only Shia and Sunni waqfs.
7) The electoral colleges for electing certain category of members to the State Waqf Board has been omitted. The Chairman and all the members of the board will be nominated by the State government. Two members of the Board shall be non-Muslims.
8) The provision in the Principal Act that the CEO of the Board shall be a Muslim has been removed. How can an officer who has no knowledge about Islam and its practices administer the Board which deals with Muslim religious institutions?
9) In the Principal Act, on receipt of an application for registration of a waqf, the Waqf Board would enquire and take a decision. In the Amendment Bill, the Board shall forward such applications to the Collector to inquire the genuineness and validity of the application and correctness of any particulars.
10) The power of the Board under Section 40 (1) and (2) to collect information about any property it has reason to believe to be a waqf property, make enquiry and take a decision has been taken away in the Amendment Bill.
11) The power of the Board to enquire whether any property of any Trust or Society is a waqf property and if satisfied that it is a waqf property call upon the Trust or Society to register such property as waqf property has been taken away in the Amendment.
12) The penalty for alienation of waqf property without sanction of the Board which was ‘rigorous imprisonment’ in the Principal Act is now modified as just ‘imprisonment’. The clause stating that this offence is cognizable and non-bailable has been omitted.
13) In the Principal Act, the Board could cancel or modify the scheme of management of a waqf at any time. In the Amendment Bill, so such order can be passed by the Board unless a written notice is given inviting objections from persons likely to be affected and the general public.
14) The annual waqf contribution required to be paid to the Board by the waqf has been reduced to 5% from 7%. This will affect the functioning of many Boards who have financial crunch and find it difficult to pay the salaries of their staff and meet the litigation costs.
15) In the Principal Act, orders passed under the Land Acquisition Act without the knowledge of the Board “shall be declared void”. In the Amended Bill, these words are replaced by the words: “shall be kept in abeyance relating to portion of the property claimed by the Board”.
16) In the Principal Act, if any movable or immovable property has been given or donated by any person not professing Islam for a waqf, then such property shall be deemed to be comprised in that waqf. This has been omitted in the Amendment Bill. Non-Muslims cannot donate a property to a waqf, but they can become Board members?
17) In the Principal Act, the Limitation Act, 1963 was not applicable to any suit for possession of immovable property comprised in any waqf or for possession of any interest in such property. This Section has been omitted which has serious consequences while recovering any waqf property after a time gap.
18) The provisions of the Principal Act shall have overridden effect, notwithstanding anything inconsistent contained in any other law. This Section has been omitted in the Amendment Bill.
19) As per the Amendment Bill, the Central government will make rules to carry out the provisions of the Waqf Act. In the Principal Act the rules were to be framed by the State government.
Nothing is gained by re-naming the Waqf Act, 1995 as “The Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995” as stated in the Waqf (Amendment) Bill, 2024, except causing much inconvenience.
COMMENTS