The Waqf Amendment Bill goes beyond constitutionally allowed State interference for better administration

THE disquiet around The Waqf (Amendment) Bill, 2024 can be attributed to the apprehension that the Union government has exploited the shortcomings and misgovernance in waqf administration as a pretext for expanding the scope of government interference in waqf institutions beyond what is required for their better administration.

In fact, the prime motive seems to be to enable government interference for purposes that may prove detrimental to the raison d’etre of the institution of waqf.

In this context, let us objectively examine major concern areas on the parameters of desirability, necessity and constitutionality, and see whether these concerns are merited or hyperbolised.

At the outset, it may be remarked that waqf institutions in India suffer from pervasive and intractable corruption and chronic misgovernance. Mosques and madarsas may be among the few institutions where waqf property is being used for demarcated purposes, and to that extent they may be accepted, though the latter suffers from its own set of issues on another account.

Consequently, waqf property is beset by encroachment, sale and lease at throwaway prices and a lack of innovative economic practices for the enhancement of income from unoccupied properties to serve the goals of the waqf institutions effectively.

A Joint Parliamentary Committee (JPC) headed by K. Rehman Khan reported in 2013 that 70 percent of waqf property has been encroached upon and with regard to the remaining, there are cases of blatant corruption, including disposal of land to builders, markets, hotels, malls or industries at throwaway rents.

For instance, in Delhi alone, illegally occupied properties include the CGO complex, JLN Stadium and Delhi Public School (Mathura Road).

In Andhra Pradesh, hundreds of acres of land belonging to the Dargah Hussain Shah Vali endowment, which is valued at thousands of crores of rupees, have been illegally sold to multinational companies, particularly information technology companies.

In Delhi, 86 properties have been rented out for ₹1 each and 110 properties for rents ranging between ₹11 and ₹127. Such instances abound in other places and have led to the current pyrrhic state of the institution.

At this stage, it ought also to be clarified that the State may legislate for better administration and governance of secular affairs of a religious denomination, without alienating the right of the religious denomination to manage such properties; and the same is well established through a catena of judgments of the Supreme Court.

What, then, would comprise better administration of the institution of waqf? Here, it is pertinent to first understand what ‘waqf’ is. We do not need to go far for that.

Nearly all would agree that the definition of waqf in the Waqf Act, 1995, captures the meaning and character of this institution of great antiquity right up to the lifetime of Prophet Muhammad himself. Accordingly, waqf means “the permanent dedication by any person, of any movable or immovable property, for any purpose recognised by the Muslim law as pious, religious or charitable”.

A better administration of this institution, therefore, may conceptually entail (1) curbing corruption, (2) establishing institutions such as madarsas and orphanages to better achieve the purpose of waqf, and (3) better management of auqaf (plural of waqf) on sound economic principles to generate optimum revenue to attain the goals of the institution.

Do the amendments proposed in the Amendment Bill ensure better administration for addressing these concerns? Let us have a look at some of the major amending provisions that have ruffled many feathers.