Mohammad Hesham Atik
The Ministry of Minority affairs has introduced a Bill to change the structure of the current Waqf Board. The Bill presents various new propositions which have raised concerns from the opposition party about its implications and the possible violation of constitutional rights. The Bill is now referred to a Joint Parliamentary Committee with 31 members for further suggestions and opinions.
During the recent budget session of the Parliament, the Minister of Minority Affairs Kiren Rijiju tabled a bill that recommends 40 changes to the present structure or act of the Waqf Board. Waqf Board is a statutory body which is responsible for managing and protecting Waqf properties, that is, properties that are typically owned by Muslims for charitable, educational or religious purposes. Following strong backlash from opposition party members, the bill was referred to a Joint Parliamentary Committee (JPC) for review. The JPC, consisting of 31 members (10 from the Rajya Sabha and 21 from the Lok Sabha), is not bound to the government and can either accept or reject the suggestions in the bill. The JPC is often referred to as a mini-parliament.
During the debate on the bill, opposition members raised concerns about the freedom of practice and propagation of religion under Article 25, and the protection of interests of minorities under Article 29. They also referenced Article 38 of the Directive Principles of State Policy, which states that the state should secure a social order for the promotion of the welfare of the people. In response, the Minister of Minority Affairs stated that the Sachar Committee report had suggested the changes, which the UPA government did not address due to their vote bank politics. However, the Sachar Committee report was transiently presented by the Ministry of Minority Affairs in Parliament.
Sachar Committee Report Recommendations
The Sachar Committee report suggested several changes:
1. Waqf Rules: Many states have not framed Waqf Rules even after eleven years since the Waqf Act, 1995 was enacted, leading to non-implementation, corruption, and lack of accountability. The report recommends regular refresher training courses for the staff of State Waqf Boards, supervised by the Central Waqf Council.
2. Amendments to Waqf Act, 1995: The report suggests empowering state Waqf Boards to deal with the removal of encroachments on Waqf properties. It recommends amending Section 83 (4) to specify that the Waqf Tribunal should have a full-time presiding officer appointed exclusively for Waqf purposes, with the power to provide interim relief and award damages.
3. Public Premises (Eviction of Unauthorized Occupants) Act: The report recommends treating all Waqfs notified in the Gazette as public premises. Encroachments on these properties should be treated like encroachments on government land, and the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 should be applied to remove encroachments and recover arrears of rent at market rates as arrears of land revenue.
4. Other Legal Structures: The report suggests amending various acts, including the Rent Control Act, Land Reforms Act, Agricultural Land Ceilings Act, Urban Land Ceiling Act, Registration of Properties Act, Tenancy Act, Stamp Duty Act, Court Fee Act, Income-tax Act, and Private Forest Vesting & Assignments Act, to facilitate the functioning of Waqfs without hurting their public objectives.
Proposed Changes in the Bill
1. Formation of Waqf: According to the bill, a person who has been practicing Islam for at least five years can only declare a Waqf. It clarifies that the person must own the property being declared and removes Waqf by user. It also ensures that Waqf-alal-aulad must not deny inheritance rights to the donor’s heirs, including women heirs.
2. Government Property as Waqf: According to the bill, the property will cease to be a Waqf if it belongs to the government. The area Collector will determine ownership in case of uncertainty and submit a report to the state government.
3. Power to Determine if a Property is Waqf: Waqf Board’s power to inquire and determine if a property is a Waqf is removed in the bill.
4. Survey of Waqf: The bill empowers Collectors to conduct the survey of Waqf properties instead of appointing a Survey Commissioner and additional commissioners.
5. Central Waqf Council: The bill provides that two members of the Central Waqf Council must be non-Muslims and removes the requirement for MPs, former judges, and eminent persons to be Muslims.
6. Waqf Boards: The bill empowers the state government to nominate one person from each electoral college to the Board, who need not be Muslims. It also includes provisions for representation from Shias, Sunnis, Backward classes of Muslims, Bohra, and Agakhani communities.
7. Composition of Tribunals: The bill removes the requirement for a person knowledgeable in Muslim law to be a Tribunal member and instead includes a current or former District Court judge and a current or former officer of the rank of joint secretary to the state government.
8. Appeal on Orders of Tribunals: The bill allows Tribunal orders to be appealed in the High Court within 90 days.
9. Powers of the Central Government: The bill empowers the central government to make rules regarding the registration, publication of accounts, and publication of proceedings of Waqf Boards. It also allows the central government to audit Waqf accounts through the CAG or a designated officer.
10. Waqf Boards for Bohra and Aga Khani: The bill allows establishing separate Waqf Boards for Aghakhani and Bohra sects.
Waqf Board Responsibilities
The Waqf Board is legally responsible for managing Waqf properties. It includes members who are nominated to oversee the appointment of custodians to ensure that the proceeds are used as intended. These properties are managed by a Mutawwali appointed by a competent authority. India has had a legal regime for the governance of Waqf properties since 1913, with the Mussalman Waqf Act, 1913 defining Waqf as the permanent dedication of any property by a person professing the Mussalman faith for religious, pious, or charitable purposes.
Encroachment Issues
There have been numerous instances of encroachment on Waqf properties by the government and individuals. For example, the Telugu Desam Party (TDP) government in Andhra Pradesh encroached on thousands of acres of land and gave it to the Airport Authority of India without compensation to the Waqf Board. The Waqf Tribunal and the High Court upheld a stay on the transfer of ownership, and the case is now pending in the Supreme Court. In Delhi, around 123 high-revenue generating properties of the Waqf Board have been encroached upon by the government and individuals, with cases pending in various courts. According to Deccan Herald, more than 17,000 Waqf properties have been encroached upon across the country, with an estimated value of around 1 lakh crore.
Waqf Tribunal Power and Myths
There is a misconception propagated by right-wing influencers and YouTubers that the Waqf Tribunal has unlimited power to grab any property by claiming it as Waqf. However, this is incorrect, as there are no such provisions in any act related to the Waqf Board. The limited powers of the Waqf board is demonstrated by the fact that many of its decisions are pending in the High Court and the Supreme Court.
Conclusion
The bill presented in Parliament seems influenced by social media narratives rather than factual legal provisions. The proposed changes could potentially marginalize minority communities by restricting their educational and vocational opportunities provided by the Waqf Board. It is crucial to ensure that any amendments to the Waqf Act and related legislation uphold the principles of justice and equality, protecting the rights and interests of all communities.
Mohammad Hesham Atik is a student pursuing B.A. (H) Psychology from Jamia Millia Islamia
This is a guest entry written for The Jamia Review.
Edited by: Zakia Tasnim Ahmed
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