Anwarulhaq Baig
NEW DELHI: The legal team of the Karnataka Waqf Board has unveiled a documented analysis of the Waqf Amendment Bill 2024, warning that it could severely undermine the autonomy and effectiveness of state Waqf Boards, and concluding that the amendments are ineffective, poor to existing Waqf and Hindu Endowment Acts, and detrimental to the management of Islamic endowments nationwide.
The legal team of the Karnataka Waqf Board, led by Advocate Riyaz Ahmad and supported by retired District Judge Ismail and Advocate Syed Akmal Razvi, composed a detailed comparison of the proposed amendments with the existing Waqf Act 1995 and Hindu Endowment laws.
Meanwhile, representatives from the Karnataka Waqf Board presented a summary of their analysis to the JPC on the Waqf Amendment Bill during discussions with stakeholders in Bengaluru on October 1. Earlier, under Chairman Anwar Basha, the Board formally objected to the proposed amendments, and passed resolutions against the bill.
Their analysis comprise in a comprehensive worksheet featuring a three-column table that outlines the legal team’s inputs, suggestions, and objections, digitally prepared by Syed Nasirul Haq. Key concerns include the introduction of a centralized management structure that threatens state boards’ authority and increases the involvement of the Central Government and Revenue Department.
In contrast, Hindu endowments benefit from a more flexible governance structure, with each state independently managing its own board. These boards, composed solely of Hindu community members, are tailored to the specific needs and practices of local institutions, ensuring that management aligns with community values.
Non-Muslim Representation in Waqf Council and State Boards Despite Mandatory Exclusion of Non-Hindus from Hindu Endowment Bodies
The legal team has raised concerns about non-Muslim representation in the Waqf Council, highlighting the contrast with the mandatory exclusion of non-Hindus from Hindu endowment bodies. The proposed amendments indicate that the Central Waqf Council will primarily consist of Muslims but will also allow representation from non-Muslims. In contrast, the governance structure of Hindu endowments does not include non-Hindus in administrative roles, maintaining a homogeneous representation that aligns with the community’s religious practices.
Under the current act, Section 9 states that the Council will include members appointed from among Muslims, including three Members of Parliament and representatives from prominent Muslim organizations. However, the Waqf Bill allows for only two non-Muslims to be included, which critics argue is discriminatory and infringes on constitutional rights to religious practice and institutional establishment.
The legal team highlights that, unlike the Waqf Council’s structure, the governance of Hindu endowments explicitly excludes non-Hindus from administrative roles. For example, the Tamil Nadu Hindu Religious and Charitable Endowments Act mandates that all officials involved must profess Hinduism. Similar provisions exist in other states, reinforcing the homogeneous representation within Hindu institutions.
The legal team asserts that the Waqf Council’s structure violates principles outlined in the Hindu Religious Institutions and Charitable Endowments Act of 1997, which restricts administrative roles to members of the respective faiths. They emphasize that the amendments should reflect a more inclusive approach, allowing for broader representation while maintaining the integrity of religious governance.
Similarly, the amendments suggest allowing non-Muslims to be members of the state waqf boards. The Waqf Bill, amending Section 14 titled “Composition of Board,” states that each board shall consist of no more than eleven members, nominated by the State Government. It further specifies that “two of these members shall be non-Muslims.”
In response, the legal team objects, stating, “Based on the principles of parity, Hindu and Sikh acts provide for representation from their respective communities; the same should be applied to Muslims.”
The Waqf Bill proposes further changes regarding the representation of various Muslim sects in the Waqf Board under Section 14. It states, “(6) In determining the number of members belonging to Shia, Sunni, Bohra, Aghakhani, or other backward classes among Muslim communities, the State Government, or the Central Government in the case of a Union territory, shall consider the number and value of Shia, Sunni, Bohra, Aghakhani, and other backward classes among Muslim auqaf administered by the Board, and appointments shall be made in accordance with this determination.”
On which, the legal team expressed concern, stating, “This provision grants arbitrary power to the government to define backward classes, which could hinder the efficient functioning of the board. The criteria should be based on the number of auqaf, not population.”
In Section 23, which addresses the appointment of the Chief Executive Officer (CEO) and their term of office for the state waqf board, the Waqf Bill does not specify that the CEO must be Muslim. The bill states, “(1) There shall be a full-time Chief Executive Officer of the Board to be appointed by the State Government, who shall not be below the rank of Joint Secretary to the State Government.”
In response, the legal team has suggested that the CEO should be a Muslim and not below the rank of Deputy Secretary to the State Government. They argue for parity with the Hindu Religious Institutions and Charitable Endowment Act of 1997, which requires that the CEO of Hindu institutions be Hindu. They emphasize that a similar requirement for the CEO to be Muslim should be included in the Waqf Bill.
Proposed Deputy Collector Roles Undermine the CEO of the Waqf Board
Voicing strong objections to the proposed roles of Deputy Collectors in the Waqf Bill, the legal team of the Karnataka Waqf Board warned that increasing the authority of Collectors and Deputy Collectors while diluting the roles of Waqf Board CEOs undermines governance, especially since none of the Hindu Endowment Acts provide for a Deputy Commissioner’s role in managing their endowments.
In particular, Section 3, Subsection D of the bill introduces a new definition for “Collector,” stating, “(da) ‘Collector’ includes the Collector of land revenue of a district, or the Deputy Commissioner, or any officer not below the rank of Deputy Collector authorized in writing by the Collector.”
The legal team highlights that the Deputy Commissioner, as the administrative head, already manages a significant workload and may not be able to take on additional responsibilities related to waqf management. They also note that none of the Hindu Endowment Acts provide for a role for the Deputy Commissioner in managing endowments, raising concerns about equality and fairness.
“This proposed amendment affects the powers of the Chief Executive Officer of the Waqf Board and therefore must be opposed,” the legal team stated.
Increased Bureaucratic Hurdles in Centralized Database
The legal team’s document opposes the amendment requiring waqf properties to be registered on a centralized portal, arguing that it could create bureaucratic hurdles and delays in management and oversight. They note that the Central Government does not interfere in the management of Hindu endowments, suggesting that such intervention is unwarranted for waqfs as well.
The bill proposes adding a new clause under subsection ‘K’ of Section 3, stating: “(ka) ‘portal and database’ means the waqf asset management system or any other system set up by the Central Government for the registration, accounts, audit, and any other details of waqf and the Board, as may be prescribed by the Central Government.”
This, they contend, would hinder the timely administration of waqf properties and the distribution of benefits to beneficiaries.
Omission of Waqf Survey Commissioner and transferring powers to Collector or Revenue Officer
The proposed bill seeks to omit the role of the dedicated Survey Commissioner for waqf properties, instead transferring these responsibilities to the Collector or Revenue Officer. The bill removes subsection ‘K’ of Section 3, which defines the Survey Commissioner and includes Additional or Assistant Survey Commissioners.
Raising serious concerns about this shift, legal experts argue that the meticulous survey process currently managed by the Survey Commissioner under the existing act has proven effective. “The Deputy Commissioner, as the administrative head, is already overburdened and will struggle to manage these additional responsibilities due to time constraints,” they warn.
Moreover, the legal team highlights potential conflicts of interest, noting that the Deputy Commissioner is tasked with protecting government properties and thus may not fairly adjudicate disputes between waqf and government interests. “The courts have consistently held that while the Deputy Commissioner can make revenue entries, they cannot decide title disputes,” they emphasize.
The legal team urges a closer examination of the implications of this change, referencing the rules under the 1954 Act and Section 31 of The Hindu Religious Institutions and Charitable Endowments Act, 1997, to underscore the need for a dedicated authority in managing waqf properties.
Bizarre 5-Year Practicing Muslim Condition for Waqf Creation or Donations
Dubbing it discriminatory against the Muslim community, the legal team of the Karnataka Waqf Board points out that the bill stipulates individuals must have practiced Islam for a minimum of five years to create a waqf—a provision they view as deeply restrictive and unjust. Under subsection ‘R’ of Section 3, the amendment replaces the phrase “any person, of any movable or immovable property” with “any person practicing Islam for at least five years, of any movable or immovable property, having ownership of such property.” This change, they assert, could limit the rights of numerous potential beneficiaries who do not meet this criterion.
“This amendment constitutes a serious violation of the right to life and property,” the legal team argues. “No law should prohibit an individual from managing their own assets as they see fit.” They also point out that the requirement to demonstrate five years of practice is prone to misuse and nearly impossible to verify.
Dangerous Implications of Scrapping the Waqf by User provision
The proposed removal of the clause recognizing waqf by user could have significant implications for properties like mosques built on private land, which have historically been treated as waqf. This change may lead to disputes over ownership and usage rights, potentially affecting the community’s access to essential religious and charitable facilities.
The waqf bill seeks to omit sub-clause (i) under subsection ‘R’ of Section 3, which states: “3. ‘waqf’ means the permanent dedication by any person of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable and includes—(i) a waqf by user, but such waqf shall not cease to be a waqf by reason only of the user having ceased, irrespective of the period of such cesser.”
Legal experts warn that this amendment could alter established rights for beneficiaries, undermining the historical recognition of waqf by user. They emphasize that properties such as Khabrastan, Idgah, Maqbira, and Dargah have been considered waqf by user for generations. “The omission of this clause will seriously impact the Muslim community, fundamentally changing the concept of waqf,” they assert.
The legal team argues that individuals often build mosques on private land and dedicate them to the community without formal documentation, making them waqf by user. “This change is discriminatory, especially when compared to Section 2(5) of the Hindu Religious Charitable and Endowment Act, 1997,” they conclude.
Legal Concerns on Govt Claims over Waqf Property
The legal team highlights a new amendment to the Waqf Bill, which introduces Section 3C. This section states that any government property identified or declared as waqf property, whether before or after the bill’s enactment, shall not be considered waqf property.
According to subsection (2), if there is a dispute over whether a property is government-owned, the matter will be referred to the Collector with jurisdiction. The Collector is responsible for inquiring into and determining the property’s status, then reporting back to the State Government. Until this report is submitted, the property cannot be classified as waqf.
Subsection (3) specifies that if the Collector determines the property to be government-owned, he must update the revenue records and report to the State Government. Subsequently, subsection (4) mandates that the State Government direct the Waqf Board to make necessary corrections in the records.
The legal team raises alarms about this amendment, arguing that it undermines established legal principles. They assert that these changes may infringe upon the Limitation Act and the rights of adverse possession, effectively nullifying the authority established by a 1965 notification. They contend that the amendment disrupts settled issues and transfers powers from the Department of Minority Welfare to the Revenue Department, compromising the integrity of the Waqf Act.
Furthermore, the legal team argues that empowering the Revenue Department to adjudicate title disputes usurps the role of the judiciary. “The Collector cannot be a judge in his own case,” they emphasize, pointing out the potential for arbitrary decision-making.
In defense of the amendment, proponents cite the January 24, 2020, ruling in Smt. Jayamma vs. The State of Karnataka, which addresses issues related to limitation laws.
Key Sections Regarding Survey of Waqf Properties Omitted
The recently proposed Waqf Bill introduced crucial modifications related to the preliminary survey of waqf properties, raising alarms among legal experts regarding potential ramifications. In Section 4, titled “Preliminary Survey of Auqaf,” the amendment states that any pending survey of waqf properties before the Survey Commissioner will now be transferred to the jurisdiction of the Collector. The Collector is tasked with conducting the survey in accordance with state revenue laws and submitting a report to the State Government. However, legal teams have noted that the Revenue Act of Karnataka does not empower the Collector to make title determinations, complicating the process.
Additionally, the amendment omits critical sub-sections (1A), (2), and (3) that previously outlined the responsibilities and timelines for conducting waqf property surveys. Subsection (1A) required state governments to maintain a list of waqf properties and complete surveys within a year of the Waqf (Amendment) Act, 2013. The omission of these provisions is seen by legal experts as likely to result in prolonged litigation.
Moreover, the bill replaces references to the “Survey Commissioner” with “Collector” throughout Section 4, transferring all responsibilities from the Survey Commissioner to the Collector. Another notable omission is subsection (6), which allowed the State Government to mandate subsequent surveys of waqf properties as needed. Legal advisors argue that this provision should be retained to ensure future waqf properties are accurately recorded and existing databases are updated.
Proposed Deletions Render Recovery of Encroached Waqf Lands Ineffective
The waqf bill proposes the deletion of critical sections—107, 108, and 108A—that are essential for effectively recovering encroached waqf lands, according to the legal team.
Section 107 states that the Central Limitation Act (Act 36 of 1963) does not apply to the recovery of waqf properties. Section 108 addresses special provisions related to evacuee waqf properties, while Section 108A affirms that the provisions of the Waqf Act take precedence over other laws.
The legal team emphasizes the importance of Section 107: “For the protection and recovery of waqf properties, it is vital that the Limitation Act does not apply, as many waqf properties have been illegally alienated, often in collusion with mutawallis.”
They reference the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, noting, “Section 109 states that the Limitation Act does not apply to the recovery of properties belonging to religious institutions, affirming that no aspect of the Limitation Act, 1963, shall apply to suits for possession of immovable property belonging to any religious institution.”
Regarding Section 108, the team reiterates its significance: “It is crucial that the Limitation Act does not apply, as many waqf properties have been illegally alienated, frequently with the collusion of mutawallis.”
Concerning Section 108A, the legal team argues for its retention: “This section is essential for protecting properties donated over centuries for the welfare of the Muslim community. Thus, Section 108A, which grants overriding effect to the Waqf Act, must remain intact.”
Deletion of Section 40 Raises Concerns Over Waqf Property Inquiry Powers
The Waqf Bill proposes deleting Section 40 of the Waqf Act, which grants the board and tribunal the authority to investigate whether a property is classified as Waqf. The legal team stresses that the removal of Section 40 undermines the ability to effectively protect and recover Waqf properties.
The legal team expressed concern over this deletion, stating, “Removing the Board’s and Tribunal’s powers means there will be no process in place to determine whether a property is Waqf.”
To explain their point, the legal team cites provisions from the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, which empowers officials to make determinations about religious institutions and properties. The legal team further points to similar provisions in the Andhra Pradesh Act, which also outlines the powers of relevant officials regarding property inquiries. The Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, empowers the Commissioner to take protective actions regarding properties at risk of illegal alienation.
Proposed Amendments Threaten Authority of State Waqf Boards
The legal team highlights alarming discrepancies in the amendment bill, which seeks to replace the straightforward title of the Waqf Act with the convoluted “Unified Waqf Management, Empowerment, Efficiency, and Development.” They note, “There is no central Act for Hindu religious endowments; all legislations are state-specific.” They warn that this could compromise the powers of the Board and Council.
Concerns Over Sect-Specific Amendments in Waqf Bill
The document criticizes the introduction of specific waqf types, such as Aghakhani and Bohra waqfs, which are irrelevant in Karnataka. The original Waqf Act defines beneficiaries broadly, encompassing all Muslims regardless of sect.
The amendment proposes splitting waqfs into various sects, stating:
1. Aghakhani Waqf: “A waqf dedicated by an Aghakhani waqif.”
2. Bohra Waqf: “A waqf dedicated by a Bohra waqif.”
The legal team argues that these additions lack justification, as there are no Aghakhani or Bohra waqfs in Karnataka. They emphasize that such changes were made without proper consideration of the local context.
Inapt Changes to Dispute Resolution Provisions
The legal team has raised concerns about changes in Section 6, titled “Disputes Regarding Auqaf,” which may complicate the resolution of disputes over waqf properties. The amendment allows parties, including the Board, mutawalli (trustee), or any aggrieved person, to file a suit in a Tribunal if questions arise about a property’s status as waqf or its classification as Shia or Sunni. However, it omits the phrase “and the decision of the Tribunal in respect of such matter shall be final,” which undermines the finality of Tribunal decisions and creates confusion regarding the Collector’s authority. Additionally, the amendment extends the timeframe for filing disputes from one year to two years, which analysts interpret as a strategy to prolong litigation and open the door to endless appeals, complicating the resolution process.
The findings by the legal team of the Karnataka Waqf Board broadly suggest that the BJP-led Union government should reconsider the proposed amendments and engage in meaningful dialogue with the Muslim community to address their concerns.