The Waqf (Amendment) Bill, 2024, which is currently being scrutinised by a Joint Committee of Parliament (JCP), has stirred a hornet’s nest. The government claims that the proposed amendments to the original Waqf Act are intended to bring transparency, efficiency, and accountability in the management and administration of over 8.7 lakh Waqf properties spread across India. It is also being asserted that this Bill inten ds to address issues of corruption and to ensure the proper utilisation of Waqf properties so that its benefits reach poor Muslims. How ever, Muslims, opposition parties, and secularliberal intellectuals consider the proposed changes as a wolf in sheep’s clothing.

Much before the Waqf (Amendment) Bill was introduced in the Lok Sabha on 8 August 2024, a false narrative was already being peddled in the print and electronic media and also through other digital platforms for quite some time. A false impression is being sought to be created that Waqf Boards have unlimited power and they can lay claims on anyone’s property, especially those of Hindus, and declare them as Waqf property and courts cannot intervene in the matter. A commentator has even claimed that Waqf has acted as an enabler to Islamic imperialism, proselytization, and appropriation of other denominational sites. Waqf is an important instrument of Islamic philanthropy of dedication of one’s personal property, either moveable or immoveable, for religious, pious, or charitable purposes. Under Islamic law, the dedication of Waqf can take place either through a deed, or even orally.

A property can be deemed to be Waqf if it has been used for religious or charitable purposes for a long period of time. Once a Waqf is created, the proprietary right of the creator (waqif) upon such properties extinguishes and the ownership is permanently transferred to the Almighty God. A Waqf is generally perpetual and irrevocable and can never be alienated, given away as a gift, inherited, or sold. At present, Auqaf (plural of Waqf) in India is governed through the Waqf Act, 1995. This provided for the establishment of Waqf Boards in each state and Union Territory. The 1995 Act was amended in 2013, granting more power to the Waqf boards. The precursor to this was the Muslim Waqf Validating Act, 1913, brought out by the colonial government to remove the effect of the Privy Council decision in Abul Fata Mahomed lshak v. Russomoy Dhur Chowdry (1894), by which the institution of waqfal-aulad was declared illegal.

This was later replaced by the Mussalman Wakf Act, 1923. In 1954, the Waqf Act was passed, which established the Central Waqf Council in 1964. The Waqf (Amendment) Bill, 2024, proposes as many as 44 amendments to the existing Waqf Act, 1995. While expressing grave concerns over the proposed changes, the All India Muslim Personal Law Board, the Jamiat Ulema-eHind, and other prominent Muslim organisations have rejected the Bill in its entirety, there are a few proposed changes which have annoyed Muslims the most. The most contentious aspect of the bill is the proposal to include non-Muslim members in the Central Waqf Council and state Waqf Boards and the removal, from the existing Act, of the condition that the chief executive officer of a Waqf Board has to be a Muslim.

Critics point out that Waqf is a religious institution, and imposing members of other faiths on its management seems illogical as non-Hindus are not allowed to be part of temple boards. Section 7 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 specifically provides that The Commissioner and every Deputy Commissioner or Assistant Commissioner and every other Officer or servant, appointed to carry out the purposes of this Act by whomsoever appointed, shall be a person professing Hindu religion, and shall cease to hold office as such when he ceases to profess that religion.

Another aspect of the bill, that is being vehemently criticised is the addition of a new provision stating that any government property identified as Waqf will cease to be so. Replacing the Waqf Tribunal, the proposed bill has given sweeping power to the District Collector to decide whether a property is Waqf or government land in case of a dispute. The Bill also seeks to omit Section 40 from the existing Act, which empowers the Waqf Board to decide whether a particular property is a waqf property. This provision assumes significance in light of the fact that a large number of Waqf properties are under the possession of various departments of the state and the central governments. This could affect as many as 73,196 disputed properties across 30 states.

Many Muslims fear that if the proposed amendment is passed in the present form, the government would usurp Waqf properties that are already in its possession. The removal of provisions that allowed a property to be considered waqf based on oral declaration and ‘Waqf by user’ is another contentious part of the proposed legislation. Generally, a Waqf requires an express dedication, but if land has been used for a long time for a religious purpose, then the land is user Waqf. A large number of mosques and graveyards are Waqf properties by use and may not have valid Waqfnamas. Under the new law, a property without a valid waqfnama will be treated as suspect or disputed and will remain inactive until a final decision by the District Collector.

The new bill has also added that Waqf-alal-aulad must not result in denial of inheritance rights to the donor’s heir, including women heirs of the Waqif. This proposal has reopened an old tension between Muslim law of family Waqf and inheritance, which was settled way back in 1913 through the Muslim Waqf Validating Act, 1913. It is often claimed that Waqf-alal-aulad is ‘more about circumventing Quranic inheritance rules and preventing division among heirs than about altruism, charity, and public welfare’. It is true that the management and administration of Waqf in India is currently afflicted with many ailments and requires urgent corrective measures. Over the years, Waqf properties have been left neglected and mismanaged. Corruption has also crept into the Waqf system.

Though Waqf holds the third largest land ownership in the country, the income generated remains abysmally low. If efficiently managed, Waqf properties can generate thousands of crores of rupees annually. A large chunk of Waqf properties have been either encroached on or are under illegal possession with the collusion of the Waqf Board members and other officials. This sorry state of affairs cannot be allowed. However, these issues have hardly been effectively addressed in the proposed amendments in the Waqf Act. The proposed bill addresses the concerns of ‘others’ more than those needed to bring reforms in the administration of Waqf. Furthermore, there exists a huge trust deficit between the government and Muslims, who view the proposed legislation with scepticism.

They consider it politically motivated and an undue interference in their religious matters. Many of them see it as a ploy of the government to usurp Waqf land under the guise of protection and transparency. One cannot shy away from the fact that the desired goal of revamping the Waqf administration cannot be achieved in the atmosphere of suspicion and mistrust.

(The writer is political, commentator and professor at Aligarh Muslim University)