Waqf is a significant Islamic institution wherein properties are dedicated by individuals or entities for religious, charitable, or pious purposes, ensuring that these assets are held indefinitely for the intended cause. This institution has greatly influenced the socio-economic and religious fabric of Muslim communities worldwide. However, the legal frameworks surrounding waqf properties often entail intricate interactions among religious laws, state laws, and individual rights.

Once a property is dedicated as waqf, it is considered permanently owned by God and cannot be transferred, sold, or have its ownership altered in any way. This principle, known as "once a waqf, always a waqf," establishes that waqf property is irreversible and everlasting. This ensures its continued use for the charitable, religious, or public welfare purposes designated by the donor (waqif).

A Mutawalli is an individual designated to oversee and manage the operations, assets, and revenue of a waqf, a charitable endowment established under Islamic law.

The Waqf (Amendment) Bill, 2024, allegedly seeks to redefine government property as it pertains to waqf holdings, causing significant concern. Its passage could lead to profound and widespread ramifications, especially where government land is documented, customarily used, or historically acknowledged as waqf property.

Section 3C (1) of the Waqf (Amendment) Bill, 2024:

According to Section 3C(1) of the Waqf (Amendment) Bill, 2024, no government-owned property can be considered waqf property, even if it was designated as such before or after the bill becomes law.

The proposed 2024 Waqf (Amendment) Bill reportedly seeks to redefine waqf property, notably excluding land under government ownership. Specifically, Section 3C (1) provides that property controlled by the government shall not be considered waqf property, irrespective of any prior designation. This amendment is applicable both prospectively and retrospectively, resulting in a fundamental shift in the current legal framework relating to waqf properties.

A contentious element is the bill's retroactive application, meaning not only will future properties be excluded, but previously recognized waqf properties will be reclassified. This creates challenges for numerous religious and charitable institutions operating under the waqf system, some for centuries.

The bill's most crucial flaw is how it endangers the waqf status and essential protections of institutions built on government-donated land, encompassing mosques, graveyards, madrasas, mausoleums, shrines, schools, colleges, and hospitals etc. This action would negatively impact students, teachers, patients, and all individuals connected to these organizations.

The retroactive nature of the bill introduces legal ambiguity, threatening the very existence of these long-standing institutions. This could lead to significant social upheaval, spark community unrest, and create substantial legal disputes regarding property ownership, potentially escalating to conflicts fuelled by feelings of injustice.

This bill raises concerns about government overreach, pitting authorities against religious and charitable institutions. It sparks ethical debates about its impact on faith, community, and cultural heritage, extending beyond property rights to deeply held religious beliefs and community structures. Consequently, this legislation has the potential to trigger extensive legal disputes and deepen existing social divisions.

Removal of the Provision of Waqf by User:

The Waqf (Amendment) Bill, 2024, aims to reform waqf property management by abolishing "waqf by user," a concept where long-term charitable or religious use establishes waqf status without formal declaration. This change mandates official registration for all waqf properties to enhance oversight and prevent disputes.

The bill seeks to standardize waqf establishment and management, ensuring consistent governance for charitable activities. However, legal experts worry about potential complications, leading to disputes and legal challenges due to the elimination of established customary practices.

"Waqf by user" recognition relied on prolonged use for charitable purposes, unlike formal declarations. Properties like mosques, schools, shrines, mausoleums, or graveyards, used continuously for such purposes were considered waqf, supported by court cases.

These rulings affirmed that sustained religious or charitable use, even without formal documentation, could establish a "waqf by user." This contrasts with formal waqfs which requires written declarations but such were not needed with "waqf by user".

Eliminating "waqf by user" introduces uncertainty for properties used informally for charity without official registration potentially causing ownership disputes, and making management difficult. The absence of formal registration might halt their charitable services, disrupting communities that traditionally rely on them. These changes could have a severe impact on charitable activities and thus may hamper its functions.

To mitigate these issues, authorities should offer transitional support, potentially creating alternative facilities to maintain continuity of charitable services. A grace period for formal waqf declarations and registrations is necessary. Waqf boards will have to evaluate existing "waqf by user" properties, examining their historical usage, working with communities and religious institutions to safeguard charitable functions while aligning with Islamic principles and community needs.

Waqf Tribunal Orders Can Be Challenged in Court: Dispelling the Myths:

The claim that Waqf Tribunal orders are unappealable is false and undermines the legal system. Waqf Tribunals, being judicial bodies, are subject to review and appeal, with judicial officers appointed by High Courts ensuring accountability.

The Waqf Act of 1995, specifically Section 83, requires state governments to establish Waqf Tribunals, which act as civil courts with powers equivalent to those under the Code of Civil Procedure of 1908, to adjudicate disputes concerning waqf properties, tenant evictions, and elated rights.

A Waqf Tribunal is composed of a chairperson who possesses judicial experience, holding a rank not lower than a District Judge, alongside two members: one from the State Civil Services with a position equivalent to an Additional District Magistrate, and traditionally, an expert in Muslim law.

Waqf Tribunal decisions are conclusive and legally enforceable, carrying the same weight as a civil court decree, with designated civil courts responsible for their implementation.

Although Section 83 prohibits direct appeals from a Tribunal's decision, the High Court retains the authority to review Tribunal records, either on its own initiative (suo moto) or at the request of a party involved.

Waqf Tribunal rulings are not the final word; High Courts can uphold, reverse, or modify them, ensuring fairness and legal adherence. Furthermore, Article 136 of the Indian Constitution provides a pathway, through a special leave petition (SLP), for the Supreme Court to review these rulings with its approval. This layered system, including High Court supervision and potential Supreme Court review, ensures accountability and prevents unchecked decisions, despite the finality of Tribunal decisions at that level

The proposed Waqf (Amendment) Bill, 2024, proposes a notable change to the structure of Waqf Tribunals. It seeks to replace the current Muslim law expert within the Tribunal with a bureaucrat of Joint Secretary rank, either serving or former. This change raises concerns, as the removal of specialized legal expertise may hinder the Tribunal's capacity to resolve intricate waqf disputes that demand a deep understanding of Islamic principles.

Legal Implications:
The proposed legislation severely jeopardizes the core principles of waqf, particularly its perpetual nature under Islamic law, by potentially reclassifying existing waqf properties as non-waqf, directly contradicting the established principle of permanent dedication to religious or charitable purposes and endangering the entire framework. This reclassification risks destabilizing the balance between religious endowments and societal structures, leading to severe consequences for reliant institutions and communities.

Furthermore, the bill's retroactive nature could trigger widespread legal battles as previously recognized waqf properties face potential government claims, resulting in extensive litigation by waqf boards, religious entities, and communities, and thus placing a significant strain on the legal system, while also undermining public trust by disregarding historical acknowledgments.

Ultimately, this legislation threatens not only legal technicalities but the very foundations of a long-established system rooted in religious and charitable practices, questioning long-term religious and community interests, the security of property rights, and the overall commitment to legal agreements, potentially undermining social cohesion and fostering instability.

Social Implications:
The bill's social consequences are deeply concerning. Waqf properties, often culturally and religiously significant for their communities (like mosques, madrasas, shrines, mausoleums, and graveyards), serve as vital spiritual, social, and historical hubs. Government reclamation risks social unrest and feelings of injustice. Many waqf properties also provide essential social services like education and healthcare to marginalized groups; disrupting these could worsen inequality and damage community bonds. Furthermore, the bill could strain state-religious community relations, as it may be seen as infringing on religious freedom, potentially escalating tensions and fostering mistrust.

Ethical Considerations:
This bill raises serious ethical concerns regarding the balance between state power and religious freedom. While the authorities in power have a right to manage public lands, it must respect religious communities' autonomy, particularly concerning properties designated for religious or charitable purposes like waqfs.

Reclaiming waqf properties undermines their core purpose of promoting the common good and could discourage future charitable acts. Furthermore, the potential desecration of sacred sites, such as mosques and graveyards, under the guise of government property, would deeply offend religious communities, violate the sanctity of these locations, and damage the nation's reputation as a protector of religious freedoms.

The proposed plan to grant district collectors authority over Waqf property ownership is a major point of contention, with critics expressing concerns it could lead to abuse of power and political interference, especially in areas ruled by non-secular parties.

The controversial bill mandating non-Muslim members on Waqf Boards has divided opinions. While proponents praise its potential for inclusion and transparency, critics are concerned about its impact on religious autonomy. A key concern is whether this policy will be extended to Endowment Boards and Temple Trusts, potentially requiring them to include non-Hindu members as well.

Potential Consequences:
The enactment of this bill may lead to significant long-term consequences. Firstly, it has the potential to diminish trust between religious communities and government authorities. Should these communities perceive that their religious sites are vulnerable to governmental interests, it could result in a withdrawal of cooperation and engagement with state institutions, ultimately undermining the cohesion of society.

Secondly, the bill could set a troubling precedent regarding the treatment of religious and charitable properties. If the government can reclaim waqf properties simply by reclassifying them, it may pave the way for similar actions against other religious or charitable properties based on a more generalized classification, thereby threatening property rights and religious freedoms.

Thirdly, there could be economic implications as well. Waqf properties typically play a vital role in local economies by generating jobs, providing services, and creating economic opportunities for residents in the vicinity. Disruption of these properties could adversely impact local economies, particularly in areas where waqf properties are central to economic activity.

Conclusion:
To conclude, the Waqf (Amendment) Bill, 2024, while ostensibly aimed at reforms in waqf property management, raises substantive legal, social, and ethical concerns that warrant careful scrutiny. The bill's retrospective provisions and its challenge to traditional conceptions such as "waqf by user" imperil the very principle of waqf perpetuity, potentially leading to extensive legal challenges and social fragmentation.

Moreover, the bill's potential capacity to undermine the integrity of religious autonomy and to damage trust between religious institutions and the state presents a problematic precedent. Because of the sensitivity of this issue, legislative actions require a judicious and balanced approach that protects religious freedoms, adheres to constitutional mandates, and fosters mutual trust between communities and the government to promote national integration and social cohesion, ultimately benefiting all stakeholders.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565