The Waqf Bill 2024 is one that needs review

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Our fundamental rights are enshrined in the Constitution, Part III, where, according to Article 26, every religious denomination has the right to manage its own affairs in matters of religion, acquiring, owning and administering property. Also, as in Article 13(2), the state is forbidden to make any law which takes away or abridges the rights conferred by this Part, declaring that any law made in contravention of this clause shall be void.

A case of dilutions

The Waqf Bill 2024 suffers from infringements. The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 provides that no non-Hindu is eligible to be a member of its management at any level. It adds that where any of the four specified Secretaries of the Uttar Pradesh government, Cultural Director and Varanasi’s Collector and Commissioner is not Hindu, the person who is available next in the hierarchy shall be a member of the Board. Similar provisions exist in the laws in some other States.

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Even the Religious Endowments Act, 1863 says that the ‘members of the said committee shall be appointed from among persons professing the religion for the purposes of which the mosque, temple or other religious establishment was founded or is now maintained....’ The management of Sikh and Christian properties is done fully by the communities concerned without any state interference.

However, through the Waqf Bill 2024, it has been proposed by the Minority Affairs Ministry to reserve for ‘non-Muslims’, two member seats each in the Central Waqf Council and all the State Waqf Boards. And, the statutory requirement of being Muslim is proposed to be removed for a majority of the seats in all these bodies governing waqf properties.

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One can recall that the earlier JPC Waqf (1996-2006) had worked for close to a decade, having sought information through advertisements inserted in a number of newspapers published across India in all the scheduled languages. The Justice Rajinder Sachar Committee had also done its homework for 18 months. Both had travelled across India separately to listen to and receive representations from the multiplicity of stakeholders and people in general. The data collected were later collated by professional consultants. Such a huge exercise was the basis of drafting the Bill that was enacted as the Waqf (Amendment) Act 2013, strengthening the hitherto existing Waqf law with robust improvements.

Now, through the Waqf Bill 2024, the Ministry is attempting to omit these and many other existing provisions that strengthen the waqf administration in India.

Unlike the Justice Sachar Committee and the earlier decade-long Waqf JPC, it did not carry out a similar exercise — of reaching out to people especially stakeholders such as the Central Waqf Council (CWC), the State Waqf Boards, the mutawallis (managers of waqfs) and the well-known national-level Muslim socio-religious organisations and institutions. Even their starting point should not have been the Waqf Bill 2024. Rather, it should have been 2014 since when the Waqf (Amendment) Act 2013 had to be implemented.

Such work, of reaching out to the stakeholders across India and people in general, and collecting information should have been done by the apex body of waqf management, i.e., the CWC, whose statutory membership the Ministry has, ironically, kept vacant for the last couple of years. The council has to have 20 members, all of whom are mandated to be Muslim. Even the secretary has to be Muslim. But, for two years, there was only the chairman (the Minister himself). There has been no full-time Muslim secretary of the council. For the last two years, the Ministry has given additional charge of Secretary, CWC to an officer of the ministry who is not Muslim and whose hands are full with his original charge.

So, the provisions of the existing waqf law (Section 9) stand violated. And, the 2024 Bill has been drafted, presented and piloted by the Ministry by largely leaving out the Muslim community whose say in the matter could have at least been made possible through the CWC. Incidentally, it is interesting that the internal management of the CWC is financed from income of the waqfs linked to the mandatory 1% annual income contributed by the State Waqf Boards.

Reconstitute the CWC

Now, in keeping with universally acclaimed democratic and legislative traditions, the Ministry would do well to quickly reconstitute the CWC in accordance with existing waqf law. And, such a reconstituted council should steer and supervise the process of collecting facts, data and views in association with all the state Waqf Boards, the mutawallis and national-level Muslim non-government organisations and institutions.

For two years, even the council’s normal statutory works (monitoring the works done by the State Waqf Boards, including financial performance, surveys, revenue records, maintenance of waqf deeds, removing encroachments of waqf properties and audit) have been affected.

On the other hand, as against the existing mandate of 100% statutory Muslim membership in the CWC as well as in the State Waqf Boards, the 2024 Bill proposes to reduce it to less than 50%. Also proposed is dropping the requirement of the CWC Secretary and CEOs of all State Waqf boards being Muslim. It is difficult to fathom why the Ministry wants this, contrary to Articles 15, 25, 26, 29. When the management of endowments of all faiths by people of the faith concerned is statutorily guaranteed, why should not the waqfs be managed fully by the Muslim community?

There is some confusion regarding the proposal in the Waqf Bill to have at least two women in the CWC and in the State Waqf Boards. This was already done through the Waqf Amendment Act 2013 and notified in the gazette on September 23 of that year. The Ministry needs to re-examine this proposal and issue a clarification. The Bill proposes to remove the expert on Muslim law from the Waqf tribunal’s bench, wishes to do away with the finality of the tribunal’s orders and waters down the level of punishment in violations of the law by encroachers and other offenders. It withdraws the discretion of State Waqf boards to identify derelictions and proceed against encroachers. It proposes derecognising all ‘waqfs-by-user’ and enjoins upon the central government to create and control a new portal wherein every existing waqf has to re-register itself supported by the original waqf deed even though it is centuries old. If this is not done, even normal legal rights will be denied to such waqfs.

The Bill proposes to discontinue the mandatory implementation of the donor’s will (Mansha-e-Waaqif) and withdraws the existing benefit to Waqf law from the application of the limitation Act even though it remains available to similar properties of other faiths. Such infringements run through various proposals of the Bill.

Thus, the Bill deserves to be returned to the Ministry on account of procedural irregularities, infringements, retrograde steps, irrationalities, non-justifications and preconceived notions.

Number of waqf properties

There is also confusion about the number of waqf properties in India. It is important to note that there is only one authentic figure — 4,90,021 — available for public access in the Report of the Justice Sachar Committee (p 220). This figure is based on written communications received from the State Waqf Boards. The recent exercise of GPS/GIS mapping of waqf properties counts ‘manageable units’, which may be many in every waqf property.

Syed Zafar Mahmood is former OSD, Justice Rajinder Sachar Committee