Changing Character of the Wakf Institution | Ishrat Husain

Two different views are in rage as for the current Waqf (Amendment) Bill, 2024. First, it is an attack on the Constitution, religious freedoms and the federal structure of India. Secondly, it does not infringe upon the freedoms of any religious community and the proposed changes are necessary to correct flaws in the current law. But inference should be drawn by going through some of the important provisions of the proposed Bill to know the fact, whether it is going to change the very nature of the Waqf institution indeed.

The Waqf Act, 1995 consists of 113 Sections out of those 44 Sections in the proposed Bill either by insertion or omission are going to be affected. Though, the Waqf Act 1995 was drastically amended in 2013 and within such a short span of time, just in 2024, it requires changes again. The proposed Section 3C (1) provides that “any government property identified & declared as waqf property, before or after the commencement of this Act, shall not be deemed to be a waqf property”. A considerable portion of waqf was created by the princely States, those of course, were the Governments of the time. A significant number of disputes arose out of the rights granted to individuals by former princely rulers prior to the cession of their territories to the Republic of India. The legal consequences of actions taken, proprietary rights perfected, or injuries suffered in previous legal regimes are enforceable if they received implied or express recognition by subsequent sovereigns. it is necessary to understand the extent to which our law recognises the legal consequences of acts done and rights accrued under previous legal regimes. It is to be determined whether such rights are enforceable after the change of sovereignty from the princely rulers to the Republic of India. Undoubtedly, the acts done and rights accrued under previous legal regimes have legal consequences today under our present laws. Another serious implication of Section 3C (1) is that it would be implemented retrospectively and ‘waqf by user’ is going to be abolished though upheld by the Supreme court in Ayodhya dispute case. In olden days, proper documentation could not be developed and there was established practice to declare oral waqf. If 2024 Bill becomes an Act, the majority of waqf property will be extinguished. Under the doctrine of lost grant, a long-continued use or possession can raise a legal presumption that the right exercised was previously conveyed to the user or possessor and that the instrument of conveyance has been lost. For the applicability
of the doctrine of lost grant, there must be long, uninterrupted and peaceful enjoyment of an incorporeal right. Uninterrupted enjoyment includes continuous use or possession. As per law, a title can also be perfected by adverse possession by long, exclusive and continuous possession.

The post of Waqf Commissioner is abolished by omitting Section 3(p) of main Act and now District Collector will do the job of commissioner, is another sign to finish the institution. According to Section 83 Waqf Tribunal is not final authority in the decision-making process. As per Section 23, Waqf Board can not recommend the appointment of Chief Executive Officer (CEO).
According to Section 9 and 14, two non-muslims can be nominated as members of the Central Waqf Council and Waqf Board which is a good gesture. They must be. Though, it is quite contradictory to an omitted Section 104 of original Act that allows that any property can be given or donated by any person not professing Islam for the support of waqf. Entry of the Unlawful Activities (Prevention) Act, 1967, which is basically an anti-terrorist law, into new waqf law is an important indicium of serious nature. Section 64 provides grounds of removal of Mutawallis which is added by a ground that if he is a member of any association which has been declared unlawful under the UAPA, shall be removed from the post. The said ground can become more stringent without the introduction of UAPA.

Waqf is of permanent nature, therefore rules of limitation given under Limitation Act, 1963 are not applicable on waqf properties. This protection is available in Section 107 which is now omitted. Administration of Evacuee Property Act, 1950 specifies that a property evacuated by Indian citizens migrating to Pakistan during the partition and its aftermath remains under the supervision of a government-appointed custodian. Section 11 of this Act makes special provision with respect to waqf properties. Section 108 of Waqf Act, 1995 provides this protection but under this new scheme, it is omitted. Section 108A of Waqf Act, 1995 has overriding effect which is now omitted. Any law can be understood the best when one knows the intention or the reason behind why it was enacted.

Waqf Board is a body just to manage the affairs of property which mostly dedicated as waqf in the past. It should not be misunderstood as the body to protect Islam religion. Recently, Delhi High Court dismissed a petition seeking establishment of Board for Protection of Sanatana Dharma on the lines of Waqf Board for the protection of Hindu religion. Article 26 provides that every religious denomination has the right to acquire and administer the immovable and movable property according to law. All the changes must be brought to correct the administration and management of waqf property but not the character of the institution itself.

(Author: Prof. Ishrat Husain, Department of Law, AMU, Aligarh)