A Perspective on Waqf (Amendment) Bill, 2024

1. Renaming and Reframing the Purpose of the Waqf Act

• Section 1(2) of the Bill amends the title of the Act from Waqf Act to Unified Waqf Management, Empowerment, Efficiency, and Development Act.

Legal Perspective:

The renaming reflects a shift from purely religious and charitable governance to a more bureaucratic framework. The new title emphasizes public administration principles. This may raise Article 26 challenges concerning the right of religious denominations to manage their own affairs without state interference.

Litigation Potential:

• PILs could challenge the renaming, arguing it dilutes the religious character of the waqf and infringes upon Articles 25 and 26 (freedom of religion and religious autonomy).
• State Defense could argue that the renaming enhances governance and accountability without infringing religious freedom, aligning with the broader objectives of ensuring efficient waqf administration.

2. Amendments to Definitions and Creation of Waqfs

• Section 3 introduces new categories such as Aghakhani Waqf and Bohra Waqf (3(aa) and 3(ca)), while also amending the definition of waqf to include only those properties where the waqif has been practicing Islam for at least five years (Section 3(r)(a)).
• Section 3A introduces conditions for creating waqfs, including legal ownership of the property and the protection of inheritance rights, especially for women heirs.

Legal Perspective:

Previously, waqfs could be created by any Muslim with dedication for a pious purpose. Requiring that the waqif be a practicing Muslim for five years and legally own the property imposes significant restrictions. Section 3A(1) emphasizes that the creation of a waqf-alal-aulad must not deny inheritance rights, reflecting alignment with Article 14 (equality before the law).

Litigation Potential:

• Constitutional Challenge: Litigants could challenge the new conditions under Article 14 (equality) and Article 25 (religious freedom), arguing that they are arbitrary restrictions that infringe on the waqif’s right to create a waqf.
• Family Law Disputes: Cases may arise challenging waqfs where inheritance rights were denied. Section 3A(2), which ensures women’s inheritance rights, could spark disputes in family law, particularly where waqf-alal-aulad is involved.

3. Survey and Classification of Waqf Properties

• Section 4 of the Bill transfers the responsibility for surveying waqf properties from the Survey Commissioner to the Collector. This includes amendments to Section 4(1) and 4(4), where the Collector now holds powers under the Code of Civil Procedure, 1908, to conduct inquiries into waqf properties.

Legal Perspective:

This amendment embeds waqf property administration within the revenue department, shifting oversight from religious bodies to state authorities. The provision enables the Collector to classify waqf properties, which may invite challenges under Article 25 (freedom of religion), arguing that religious institutions should retain control over their property.

• Section 3C(1): It also provides that government property wrongfully declared as waqf can no longer be classified as such, and Section 3C(2) allows the Collector to resolve disputes regarding the classification of properties.

Litigation Potential:

• Property Law Disputes: Litigants may challenge decisions made by the Collector regarding waqf property classification, asserting that the state has no jurisdiction over religious property classification.
• Judicial Review: Parties aggrieved by the Collector’s decisions may seek judicial review in High Courts under Article 226, arguing that the decision violates the principle of natural justice (due process).

4. Government Property Exclusion from Waqf Lists

• Section 3C(1) of the Bill excludes government properties that were mistakenly declared as waqf from being treated as waqf property. The decision to classify a property as government-owned or waqf lies with the Collector.

Constitutional and Administrative Law Perspective:

This provision could raise concerns over due process and property rights. By granting the Collector unilateral authority to determine whether a property is government or waqf, the amendment could infringe on the waqf board's autonomy, potentially violating Article 26.

Litigation Potential:

• Administrative Challenges: Waqf boards may challenge the Collector's decisions in courts, asserting that such powers violate natural justice by sidelining religious authorities in matters of property classification.
• Property Disputes: Litigation over property ownership will likely arise, with both the government and waqf boards claiming ownership. The waiver of waqf status for government property may result in civil suits.

5. Introduction of a Centralized Portal for Waqf Property Management

• Section 3B mandates the creation of a centralized portal and database to register, audit, and manage waqf properties, with strict deadlines for registration (within six months of the Act’s commencement).

Legal Perspective:

This digitalization of waqf management is aimed at enhancing transparency, accountability, and governance. However, the additional bureaucratic burden, particularly for smaller waqfs, could lead to non-compliance, inviting litigation under Section 3B(2), which lists detailed registration requirements.

Litigation Potential:

• Compliance Issues: Waqfs failing to meet the digital registration requirements may face penalties or restrictions under Section 3B(10). Mutawallis may challenge these penalties, arguing that they were unable to comply due to administrative or technical failures.
• Privacy Concerns: Challenges under data protection laws could arise if sensitive waqf data is shared without consent or misused by third parties.

6. Representation on Waqf Boards

• Section 9 amends the composition of the Central Waqf Council and State Waqf Boards to include non-Muslims and ensure women’s representation. Section 9(2)(f) mandates the inclusion of at least two non-Muslims and women in the Central Waqf Council, and Section 14(1) introduces similar provisions for State Waqf Boards.

Constitutional Analysis:

The inclusion of non-Muslims on Waqf Boards may be challenged as a violation of Article 26(b), which allows religious denominations to manage their own affairs. Religious groups may argue that only Muslims should have the authority to manage waqf affairs.

Litigation Potential:

• Constitutional Challenge: Challenges may arise under Article 26, with litigants arguing that non-Muslim involvement undermines the religious autonomy of waqf institutions.
• Gender Equality Claims: Gender equality advocates might also challenge waqf boards if the inclusion of women remains tokenistic or if boards fail to ensure meaningful female participation, invoking Articles 14 and 15.

7. Tribunal Reforms and Judicial Oversight

• Section 83 of the Bill removes the “finality” clause from tribunal decisions, allowing appeals to the High Court under Section 83(9), which previously prohibited further appeals.

Litigator’s Perspective:

The removal of the finality clause significantly expands the scope for judicial oversight. While it offers aggrieved parties an avenue to challenge tribunal decisions, it could also lead to prolonged litigation, adding to the burden on the High Courts.

Litigation Potential:

• High Court Appeals: Aggrieved parties can now appeal tribunal decisions in High Courts under Section 83(9). This could increase waqf-related cases and lead to delays in resolving disputes.
• Precedent Issues: Higher judicial review could lead to the establishment of new legal precedents on the role and authority of waqf tribunals, particularly in complex property disputes.

8. Increased Penalties and Criminal Liability for Mismanagement

• Section 61 of the Bill increases penalties for mismanagement of waqf properties, including fines ranging from ?20,000 to ?1 lakh. Section 50A introduces new grounds for disqualification of mutawallis, including mismanagement and prior removal for corruption.

Criminal Law Perspective:

Introducing criminal penalties for mismanagement places mutawallis at significant legal risk. This may deter negligence, but it also increases the potential for litigation, as trustees may challenge the fairness of penalties, particularly where administrative failures are involved.

Litigation Potential:

• Criminal Defenses: Mutawallis facing penalties for non-compliance under Section 61(1A) may argue that the penalties are disproportionate or that administrative failures, such as lack of notice or due process, prevented compliance.
• Constitutional Challenges: Litigants may challenge the imposition of heavy fines or imprisonment terms under Article 21 (right to life and personal liberty), arguing that the penalties are excessive or arbitrary.

Conclusion

The Waqf (Amendment) Bill, 2024 introduces major legal changes aimed at improving transparency, accountability, and governance of waqf properties. While the amendments enhance state oversight, streamline property management, and ensure broader representation, they also raise significant legal challenges. Religious groups may argue that the amendments infringe on their autonomy under Articles 25 and 26, while property disputes, judicial appeals, and administrative penalties will likely give rise to increased litigation across Indian courts. The legal landscape surrounding waqfs will evolve as courts interpret and balance the rights of religious institutions with the state’s duty to regulate and manage public resources.