The Muslim Women (Protection of Rights on Marriage) Act, 2019, which banned triple talaq, marked the first step towards implementing a uniform civil code as mandated by the Directive Principles of State Policy enshrined in the Indian Constitution. Now, the Waqf (Amendment) Bill 2024, introduced in the Lok Sabha on August 8 and referred to the Joint Parliamentary Committee (JPC) the same day, seeks to rationalise and streamline the property laws governing Muslim religious endowments.
Referring the bill to the JPC would blunt accusations that seminal amendments in Muslim law are being steamrollered. If the talaq law was intended to protect the honour of Muslim women on par with women from other religious communities, the Waqf amendments are directed at aligning Waqf property law with the common property laws of the country to the extent possible without undermining the concept of Waqf itself. It is by no means an interference in the personal laws of Muslims. Should any sticking points arise in this regard, the JPC can be counted upon to address them.
The present law is codified in the Waqf Act, 1995. The bill seeks to rechristen it as the United Waqf Management, Empowerment, Efficiency and Development Act, 1995. The long-winding name seems to be unnecessary because the object of any law is set out in the act itself and not by its title. Titles should always be simple. Nonetheless, Waqf means the endowment of movable or immovable property for purposes considered pious, religious, or charitable under Muslim law. Every state is required to constitute a Waqf Board to manage waqf. There are presently as many as 30 such boards in India.
The Act allows waqf to be formed by: (i) declaration, (ii) recognition based on long-term use (waqf by user), or (iii) endowment when the line of succession ends (waqf-alal-aulad). The bill states that only a person practising Islam for at least five years may declare a waqf. It clarifies that the person must own the property being declared. Fair enough, but the JPC must address the moot question of how to determine whether a person has practised Islam for at least five years. If left unaddressed, the moot question may snowball into a major controversy clogging the dockets of courts.
The bill removes waqf by user. This too is fair enough because property rights are too sacred and valuable to be left unchallengeable, merely because of long use sanctified by the Waqf law. That waqf-alal-aulad must not result in denial of inheritance rights to the donor’s heir including women heirs is also a fair amendment as invoking personal laws to oust legitimate claims of legal heirs can cause grave injustice to one’s property rights as conferred by the law of the land. These amendments are the bones of contention.
Declaration of waqf only by a practising Muslim is an amendment necessitated by reports of forced declarations or declarations made under coercion by non-Muslims. It stands to reason that only adherents of a specific religion would transfer their properties to religious institutions serving that particular community. Some participants in the TV panel discussions have bristled at what they call religious bigotry or narrow-mindedness. Feigning innocence, they question whether Sikhs don’t offer cash in Hindu temples and vice versa. Indeed, they do. The amendment does not prohibit non-Muslims from making such cash contributions to Waqf.
What it bars is bartering away of larger rights in their landed properties to their own detriment or the detriment of legal heirs triggered by coercion or other. Such largesse is normal only when it comes from a practitioner of a given religion. Hence Waqf being unique to Islam and can therefore be resorted to only by its practitioner is a sound law.
The railways is the largest owner of land in the country, followed by the armed forces. The third in the pecking order is the Waqf Board. There have been reports of the Waqf Board sitting on government land, thereby holding up development projects, including those by the Railways. The bill specifies that any government property identified as Waqf will no longer be considered as such. The Collector of the area will determine ownership in cases of uncertainty and submit a report to the state government. If deemed to be government property, the Collector will update the revenue records accordingly. This approach is appropriate; the Waqf Board cannot operate as a law unto itself.
The current act establishes the Central Waqf Council to advise both the Central and state governments, as well as Waqf boards. The Union Minister in charge of Waqf is the ex-officio chairperson of the Council. The act requires that all council members be Muslims, and at least two must be women. Instead, the bill mandates two non-Muslim members. It also clarifies that MPs, former judges, and eminent persons appointed to the Council need not be Muslims. Following members however must be Muslims: (i) representatives of Muslim organisations, (ii) scholars in Islamic law, and (iii) chairpersons of Waqf boards. Of the Muslim members, two must be women.
This is a fair proposal given that property rights are a public matter, extending beyond narrow religious considerations. Accordingly, the bill also proposes that the Waqf tribunal in each state, which addresses disputes, be broad-based and not solely comprised of Muslim men as has been the case previously. To ensure appeals are handled on par with other property laws, the bill allows appeals from Tribunals to the high court, whereas currently, Tribunal decisions are final.
The current act allows for separate Waqf boards for Sunni and Shia sects if Shia Waqf constitutes more than 15 per cent of all Waqf properties or income in a state. The bill goes a step further and also allows separate Waqf boards for Aghakhani and Bohra sects.
The bill must be hailed for challenging the status quo. Property rights must conform to the law of the land and not left to be governed by personal laws.
The writer is a senior columnist. He tweets @smurlidharan. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.
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