The WAQF Amendment Bill 2024: Politics Vs Reforms

When was the last time you saw the Indian public actively involved in providing suggestions for a law to be introduced in Parliament? While protests against bills like the farm laws or the Citizenship Amendment Act are familiar, for the first time, a bill yet to be introduced - the WAQF Amendment Bill 2024 - received hundreds of suggestions from citizens across the nation. The Joint Parliamentary Committee (JPC) on the WAQF Amendment Bill invited public input, especially from experts, with a 15-day submission deadline, which has now ended.

Narendra Modi had promised significant reforms within the first 100 days of his third term, but instead faced criticism for the budget, passed bills, and challenges in balancing alliances with new partners. With core BJP voters losing hope for bold reforms, the government introduced the much-anticipated WAQF Amendment Bill. However, once tabled, it caused division not only within the opposition but also among NDA allies. Nitish Kumar, Chandrababu Naidu, and Chirag Paswan adopted neutral stances, requesting the bill be referred to the JPC.

Unfortunately, what followed wasn't conducive to a healthy democracy. Several Muslim politicians and organizations seized the moment to rally their community against the bill, with Asaduddin Owaisi leading the charge, labeling it anti-Islamic. Soon, videos surfaced of Muslim organizations setting up stations where people could scan a QR code to email the JPC, claiming the bill was harmful to the Muslim community. Public announcements in Muslim-majority areas falsely alleged that the bill would give the government control over WAQF land.

As Newton's third law states, every action has an equal and opposite reaction. Hindu groups, pro-Hindutva politicians, and right-wing social media accounts adopted a similar approach, encouraging Hindus to scan a QR code and email the JPC in support of the bill. Ironically, it's likely that 90% of people on both sides hadn't even read the bill. But this is how democracy often plays out.

Politics Of WAQF
In 2013, a significant change was made to the definition of Waqf. Under the Wakf Act of 1954, "Waqf" referred to the permanent dedication by a person professing Islam of any movable or immovable property for purposes recognized by Muslim law as pious, religious, or charitable. However, in 2013, the phrase "permanent dedication by a person professing Islam" was replaced with "permanent dedication by any person." This amendment implies that anyone, regardless of religion, can now transfer their property to the Waqf Board.

As per Section 40 of the Wakf Act, 1995 (amended in 2013), the state has the authority to determine whether a Waqf is Sunni or Shia. Waqf Boards are empowered to decide if a property is Waqf property. They can investigate and resolve ownership disputes, with their decisions being final unless overturned or modified by the tribunal. Appeals against board decisions can be made to the tribunal, but no timeframe is set for case resolution. This lack of timelines has led to a significant backlog of cases, raising concerns about Waqf bureaucracy and efficiency. Currently, over 40,951 cases are pending in Waqf tribunals. The absence of judicial oversight on tribunal decisions exacerbates the issue.

In 2019, in a written response to BJP MP Ajay Nishad, Minorities Affairs Minister Mukhtar Abbas Naqvi informed the Lok Sabha that 16,937 Waqf Board properties were under encroachment across the country, with Punjab accounting for 5,610, the highest number of encroachments. At the core of this issue is a complex network of Waqf properties, often plagued by mismanagement, corruption, and unclear ownership.

List of Famous WAQF Land Dispute Cases Across India
1. Tamil Nadu Waqf Board claims ownership of a Hindu-majority village
In 2022, Thiruchenthurai village (A Hindu Majority Village) near Trichy, Tamil Nadu was designated as a waqf property by the Tamil Nadu Waqf Board. Thiruchenthurai is a village situated on the south bank of the Cauvery river in Tamil Nadu. The issue came to Highlight when a resident of that Village, attempted to sell his land, but came to the surprise at the Registrar's office when he learned that the land did not belong to him and instead belonged to the Waqf Board. Surprisingly, the Waqf Board has also claimed that the 1500-year-old Sundareswarar Temple belongs to them, a temple constructed even before the Arrival of Islam in India.

2. Transferring of Gurudwara land to Waqf Board in Haryana
There has been a long conflict going on concerning Gurudwara's 14-marle land in Haryana's Jathlana village. The Waqf Board had petitioned the court in this regard and the court, in turn, assigned this land to the Waqf Board. The court directed the Gurudwara committee to vacate the land and hand it over to the Waqf Board.

However, Gurdwara Committee members Manish Batra, Jaswinder Singh, and Sardar Satwinder Singh confirmed that since 1947, the Gurdwara has stood on this site and that there has never been a mosque on the property where the Gurudwara is located, a claim made by the Waqf Board to acquire the property.

3. Surat Municipal Corporation headquarters at Muglisara had been declared waqf property
In November 2021, the Surat Municipal Corporation headquarters at Muglisara had been declared waqf property. The board had claimed that during the Mughal rule of Shah Jahan, his daughter Jahanara Begum owned Surat and her confidante Ishaqbail Yazdi alias Haqiqat Khan constructed the building back in 1644 and named it Humayun Sarai. It was reportedly donated for Haj pilgrims to rest.

4. Sunni Waqf Board claims Shah Jahan gave them the Taj Mahal
The Sunni Waqf Board has occasionally laid claims to the Taj Mahal, asserting that it is a waqf property (endowment) under Islamic law, based on the belief that the Mughal emperor Shah Jahan dedicated the monument as a waqf during his reign. They argue that since it is an Islamic structure - a mausoleum - it should be managed under Muslim personal law as waqf property.

However, the Indian government and the Archaeological Survey of India (ASI), which oversees the Taj Mahal, maintain that it is a national heritage site and a public monument, not the property of any religious organization. Legal battles have occurred over this claim, but the courts have not upheld the Sunni Waqf Board's assertions.

The matter remains controversial, as the Taj Mahal is not just a religious structure but also a symbol of India's cultural heritage.

5. Karnataka Waqf Board scam, 2012
A 7000-page study, issued in 2012 by the Karnataka State Minorities Commission, documented the commercial usage of land allocated to the Karnataka Waqf board which reportedly cost Rs 2 lakh crores - through exploiting state lands. It stated that the Karnaaka Waqf board had been allotted 54,000 acres worth Rs 410 lakh crore with 33,741 registered properties in the state, for religious or charitable purposes, however, the former Waqf Board heads misused assets, encroached, unlawfully disposed of, mismanaged, and indulged in fraudulent actions in Gulbarga, Bangalore Urban, Bangalore Rural, Ramanagaram, and Koppal in collusion with senior Congress politicians.

With the BJP now in power, significant amendments to the Waqf Act have been introduced to address long-standing issues of mismanagement, property disputes, and corruption. A key focus of the reforms is increasing transparency in both financial and administrative operations. The government also proposed clearer definitions and mandatory verification of property claims to reduce the number of disputes over Waqf lands. Another notable feature of the 2024 amendments is the inclusion of women on Waqf Boards, marking a significant step toward greater inclusivity. The bill also addresses legal concerns, allowing appeals on Waqf Tribunal decisions to be heard in civil courts, thus aligning with principles of natural justice.

While the JPC is yet to receive a thousand more common template mails, following is what we suggested JPC:

1. Clarification of Government Involvement
● The bill states that properties identified as Waqf but owned by the government will no longer be classified as Waqf, though ambiguity in ownership may lead to disputes, especially when historical records are incomplete or based on oral traditions. We suggest creating a transparent adjudication process involving government officials, legal experts, and judicial oversight. This process would include public notice, a 90-day objection period, and the option to present evidence. Unresolved disputes would be referred to a Waqf Tribunal or High Court bench with a six-month resolution timeline, ensuring fairness and rights of appeal

2. Representation in Waqf Boards
● While introducing non-Muslim members to Waqf Boards is seen as an effort toward inclusivity, there are concerns about possible interference in religious or cultural matters. The traditional operation of Waqf Boards has been rooted in Islamic principles, and religious governance may be seen as being diluted.
● The advisory boards lack representation from all sects of the Muslim community, leading to potential mismanagement and marginalization of minority sects.

Suggested Amendment:
● Define clear roles for non-Muslim members on Waqf Boards. Non-Muslim members should primarily handle financial auditing, land management, and property-related decisions, while religious and cultural matters should remain the purview of Muslim representatives.
● Establish a community nomination process where local Waqf management committees can nominate members for the Board, ensuring community-based representation and accountability, thus safeguarding the community's interests.
● Mandate representation from all prominent Muslim sects - Sunni, Shia, Barelvi, Deobandi, and others - on Waqf Boards. This would ensure that decisions reflect a broader spectrum of the Muslim community's religious and cultural diversity.
● Introduce a quota-based system or a rotational system for board appointments, ensuring that no sect dominates decision-making at any time. This can improve governance and foster inclusivity within Waqf administration.

3. Appeals and Dispute Resolution
● The amendment allows appeals of Waqf Tribunal decisions in the High Court, but delays in resolving such cases can stall development projects or prolong mismanagement of Waqf assets. It is proposed to place Waqf Tribunals under the supervision of the High Courts and Supreme Court, with decisions directly appealable. Specialized benches in High Courts should handle Waqf-related cases, with fast-track mechanisms and strict timelines to ensure quick resolutions. Independent Waqf Tribunals in each state, led by retired judges and experts, would ensure expert handling of disputes, with appeals limited to higher courts under specific conditions.

4. Survey Mechanism
● Shifting survey responsibilities to the District Collector may improve accountability but could create bureaucratic delays due to other administrative burdens.
Suggested Amendment:
● Create a specialized survey division within the revenue department, specifically tasked with Waqf property surveys. This division should include representatives from the Waqf Board, community members, and revenue officials, ensuring both efficiency and cultural sensitivity.
● These surveys should be digitally recorded and publicly accessible to ensure transparency, with a detailed report sent to both the Waqf Board and a central Waqf database.
● Proportion of tax collected from Waqf properties shall be utilized to conduct survey of Waqf Properties.

5. Strengthening Transparency and Accountability
● Mismanagement of Waqf funds is a persistent issue due to insufficient transparency and auditing. Proposed amendments include mandatory direct reporting of Waqf Boards to the Ministry of Minority Affairs, along with annual reports on finances, property management, and welfare initiatives. Annual financial audits by the Comptroller and Auditor General (CAG) or an independent body should be enforced. Non-compliance should lead to penalties, including board suspension or freezing of funds. A Waqf Property Management Portal should be established to provide public access to audit reports and property details, ensuring transparency and accountability in Waqf fund management

6. Grievance Redressal
● Currently, disputes often escalate to higher courts due to the absence of efficient local-level redressal mechanisms, delaying justice.
Suggested Amendment:
● Establish Waqf ombudsmen at the state level, empowered to handle minor disputes and grievances before they escalate to the Tribunal. These ombudsmen should be accessible to local communities and empowered to mediate and settle issues, potentially reducing the caseload on Tribunals and higher courts.
● Local Waqf Committees should also have the authority to mediate property disputes, subject to review by the ombudsman.

7. Enhanced Role of Local Communities
● Waqf properties are often best understood by local communities, but the bill does not sufficiently empower these stakeholders.
Suggested Amendment:
● Establish Local Waqf Management Committees that operate with defined legal authority to handle property administration and smaller disputes. These committees should report to the Waqf Board but should have significant autonomy in managing day-to-day affairs, repairs, and tenant negotiations.
● Encourage direct engagement between these committees and local government, enabling faster decisions regarding the maintenance, leasing, or sale of Waqf properties when required.

8. Cultural Sensitivity Training for Government Officials
● Government officials tasked with surveying or resolving Waqf property disputes may lack a deep understanding of the cultural and religious significance of Waqf properties.
Suggested Amendment:
● Implement mandatory cultural and religious sensitivity training for District Collectors and other government officials involved in Waqf affairs. This should include modules on Islamic property law, Waqf governance principles, and historical context, allowing officials to make more informed decisions.
● Set up joint workshops between the Waqf Board and government officials to facilitate better collaboration and understanding.

9. Digitalization of Waqf Records
● Many Waqf disputes arise from poor documentation, leading to encroachments or loss of revenue.
Suggested Amendment:
● Mandate the complete digitalization of Waqf records, including property records, including registration details, ownership information,property location, revenue, and expenditure, leases, and disputes. This digital database should be publicly accessible, with community members given a platform to submit concerns or report encroachments.
● Waqf board to ensure that all records are updated within a week.
● These records should be stored on a centralized online portal accessible to the public, ensuring transparency and real-time monitoring of Waqf assets.

10. Equitable Tax and Subsidy Treatment
● Waqf properties receive certain financial benefits that may not be aligned with those given to other religious or charitable organizations, creating a perception of preferential treatment.
Suggested Amendment:
● Standardize the tax treatment, subsidies, debts, and rebates for Waqf properties in line with other religious trusts and charitable organizations. This would ensure equity in the financial benefits extended to all religious institutions.
● Proportion of tax collected from the Waqf properties to be utilized by the ministry of minority affairs to support the schemes and policies for Muslims
● Enforce transparent criteria for availing tax benefits or subsidies, subjecting Waqf properties to the same eligibility and accountability standards as any other charitable trust.

11. Community Involvement and Oversight
● Insufficient involvement of the local community in Waqf management can lead to mismanagement and neglect.
Suggested Amendment:
● Establish local Waqf committees consisting of community members with a proven track record in public service. These committees would oversee the day-to-day management of Waqf properties and report irregularities to the state Waqf Board.
● This would enhance community participation and ensure that Waqf properties are managed in line with local needs and expectations.

12. Professional Management of Waqf Properties
● Ineffective management of Waqf properties can result in underutilization of assets and lost revenue.
Suggested Amendment:
● Amend the Act to enable Waqf Boards to appoint professional property managers with expertise in real estate and asset management. This would maximize the use of Waqf properties for income generation and social welfare.
● Waqf Boards should also be empowered to enter into public-private partnerships (PPPs) for the development and better utilization of Waqf properties, provided that such arrangements align with the religious principles governing Waqf.

13. Strengthening Protection Against Encroachments
● Encroachments on Waqf properties remain a significant issue due to weak enforcement mechanisms.
Suggested Amendment:
● Create a Waqf Property Protection Force or assign a specialized task force under the revenue department to handle encroachments. This force should have the power to act swiftly against illegal occupants, and penalties for encroachments should be increased significantly.
● Introduce fast-track eviction processes for illegal occupants of Waqf properties, ensuring that evictions are completed within a defined timeframe (e.g., six months from filing a case).

14. Regulation of Leasing and Transfer of Waqf Properties
● Unauthorized leasing or undervalued transfers of Waqf properties are common, leading to loss of assets.
Suggested Amendment:
● Impose stricter regulations on the leasing and transfer of Waqf properties, ensuring that transactions are conducted at market value and subject to approval by the Waqf Tribunal.
● Introduce penalties for unauthorized leases, transfers, or misuse of Waqf properties, with clear mechanisms for the recovery of lost assets to protect Waqf interests.

15. Consultation with Religious Leaders
● The bill could benefit from consultation with Islamic scholars and Waqf community leaders to address concerns of religious interference.
Suggested Amendment:
● Form a Religious Advisory Council that works alongside the government and Waqf Board to review amendments and provide input on religious aspects. This council should comprise respected scholars and community leaders, ensuring that any legal amendments respect the integrity of Waqf traditions.

16. Training Programs for Waqf Board Members and Staff
● Lack of professional expertise among Waqf Board members and staff results in poor management and financial inefficiency.
Suggested Amendment:
● Introduce mandatory training programs for Waqf Board members and staff in areas such as property management, financial accounting, legal aspects of Waqf, and community engagement. Collaborate with academic institutions and professional bodies to develop and deliver these training programs.
● Regular assessments should be conducted to evaluate the effectiveness of the training and ensure that Board members apply their knowledge effectively in the management of Waqf assets.

17. Scrutinize Foreign Funding
● The origin of foreign funding for Waqf Boards is often unclear, raising concerns about its impact. The Government should Implement strict regulations requiring government pre-approval for foreign donations, banning contributions from NGOs that fail to comply with financial laws or have ties to anti-national groups, and ensuring proper fund usage.

Conclusion
BJP may attempt to use the bill as part of its outreach to Hindu voters by portraying it as a measure to bring transparency and accountability to Waqf properties, which could appeal to its core electoral base. Regional parties such as the Samajwadi Party (SP) in Uttar Pradesh, the All India Trinamool Congress (TMC) in West Bengal, and the Indian Union Muslim League (IUML) in Kerala have strong support bases among Muslim voters. These parties are likely to capitalize on any perceived threat to Waqf properties, using it to galvanize their support among minorities. Consequently, the issue could affect regional electoral dynamics by intensifying competition for Muslim votes. There is a high possibility that this bill get passed easily from both houses of the parliament.

'Ritwik Mehta is the founder of Niti Tantra and a political strategist
''Niyati Jadaun is a practicing Advocate at Delhi High court and legal research head at Niti Tantra

The views expressed here are the individual's and don't represent those of the paper.