TOI explains: Bid to introduce transparency, accountability in Wakf boards

NEW DELHI: The government is set to introduce a bill to amend the Waqf Act, 1995, to check the unbridled powers, enhanced futher by a 2013 amendment, of Waqf Boards in what has been termed an attempt to introduce

transparency

and

accountability

in the regulation and monitoring of over 8.7 lakh properties under control of state boards across the country and weed out corruption. TOI explains what comprises Waqf and what is ailing management of assets under the boards.
What is Waqf and what does it comprise in terms of assets?
Waqf refers to properties dedicated exclusively for religious or charitable purposes under Islamic law.

Once designated as Waqf, ownership is transferred from the person making the Waqf (waqif) to Allah, making it irrevocable. These properties are managed by a mutawwali, appointed by waqif or a competent authority. Waqf boards control 8.7 lakh properties spanning 9.4 lakh acres across India, with estimated value of Rs 1.2 lakh crore. There are 32 Waqf boards, including two Shia Waqf boards (in Uttar Pradesh & Bihar).
What are the challenges posed by the irrevocability of Waqf?

Once a property is declared Waqf, it remains so forever. This irrevocability has led to various disputes and claims, some of which, like the claim on two islands in Bet Dwarka, have perplexed courts. Examples of some other disputes include the Bengaluru Eidgah ground, claimed as Waqf property from the 1850s, and the Surat Municipal Corporation building, claimed due to its historical use as a ‘sarai’ during Haj in the Mughal era. Kolkata’s Tollygunge Club and Royal Calcutta Golf Club are on Waqf land, so is ITC Windsor Hotel in Bengaluru. Encroachment on Waqf properties is also a challenge.

How did Waqf and its law evolve?
The concept of Waqf in India dates back to Delhi Sultanate, with early examples including Sultan Muizuddin Sam Ghaor’s (Muhammad Ghori) dedication of villages to Jama Masjid of Multan. Mussalman Waqf Act, 1923, marked the first attempt to regulate it. In independent India, the Waqf Act was first passed by Parliament in 1954. It was replaced by a new Waqf Act in 1995 which gave more power to Waqf boards. The accretion of power has been accompanied by increase in number of complaints of encroachment and illegal lease and sale of Waqf properties. In 2013, the Act was amended and the changes, many argue, conferred unlimited powers on Waqf boards to claim properties in the name of Muslim charity. The

amendments

made sale of Waqf properties impossible. Neither the mutawwali (custodian) nor the Waqf board has rights to sell a Waqf property.
How are the sweeping powers sought to be curbed under the bill?
Section 40 of the Waqf Act, 1995, gives Waqf boards the power to decide if a property is Waqf property. There are complaints this power has been misused by vested interests for property grab with the help of the corrupt Waqf bureaucracy. There have also been allegations of misuse of powers given to boards regarding appointment of mutawwalis and cases challenging appointment of managers. The bill proposes to repeal the controversial section altogether and vest powers in the collector. Interestingly, even countries that follow Muslim law do not have a Waqf body with such powers.
How has the definition of Waqf changed from 1923 to 2013?
The main change in definition was made in 2013, when the expression ‘permanent dedication by a person professing Islam’ was replaced by ‘permanent dedication by any person’. After this amendment, it is believed Waqf has opened the floodgates for dedication of property to Waqf boards by any person.
How cases and complaints have piled up
Disputes have mounted over the years, and the Waqf bureaucracy has been criticised for inefficacy, leading to issues like encroachment, mismanagement, ownership disputes, and delays in registration and surveys. There are 40,951 cases pending in tribunals which are part of the Waqf system. The problem is compounded by the absence of judicial oversight on decisions of tribunals which exclusively comprise members of Waqf bureaucracy. The law has been under growing public scrutiny after 2013, with complaints coming from Muslim intellectuals, women and different sects such as Bohras, and OBC Muslims.
Flaws in the appeal process are also a big concern. For instance, an appeal against a board decision lies with the tribunal but the latter has no timeline for disposal of cases. The tribunal’s decision is final and there is no provision for appeal except under writ jurisdiction in high courts. Moreover, some states don’t have tribunals, making the Waqf bureaucacy the ultimate arbiter.
In states with a single Waqf board, the need is felt to have representation from minority sects among Muslims, like Bohras and Shias, as well as OBC Muslims, the Pasmandas. Misuse of ‘Waqf-al-Aulad’ provision to deny inheritance rights to women and orphans in certain cases is another concern sought to be aaddressed by the bill.
What did Sachar Committee and other panels say on the Waqf system?
Sachar Committee’s 2006 report recommended need for regulation, efficient management of records, inclusion of non-Muslim technical expertise in Waqf management and bringing Waqf under the scheme of financial audit, among other things. Similarly, the joint parliamentary committee’s report on Waqf presented to Rajya Sabha in March 2008 recommended revamping the composition of Waqf boards, proposing appointment of a senior officer as CEO for state Waqf boards, stringent action for unauthorised alienation of Waqf properties, stringent punishment to mutawwalis for corruption, creating scope for intervention by HC in some cases, computerisation of Waqf boards and adequate representation to the Shia community in the Central Waqf Council.
What’s the broader idea behind the amendments?
The idea, govt says, is to modernise management of Waqf properties, protect women’s rights, ensure fair representation in Central Waqf Council and Waqf boards, reduce litigation, have effective coordination with revenue dept and also provide judicial oversight on tribunal decisions.
What’s the Muslim Personal Law Board saying?
The

All India Muslim Personal Law Board

has called the bill an interference with personal laws, and threatened to start a mass movement. But the All India Sufi Sajjadanashin Council, the apex body representing Sufi shrines, has welcomed govt’s proposal alleging Waqf boards work in a “dictatorial” manner.