Problems in the Legal Structure of Waqf Governance in India

By Grace Mubashir, New Age Islam 23 November 2024 A Report Based on Insights from Legal Experts and Advocates in Kerala ---- Introduction The Waqf Act, 1995, aims to provide a robust legal framework for regulating and managing Waqf properties in India. Despite its comprehensive provisions, significant challenges undermine the effective governance of Waqf assets. Insights from legal experts and practicing advocates in Kerala reveal systemic flaws in the legal structure, compounded by procedural inefficiencies and enforcement gaps. This report examines the critical issues plaguing the legal governance of Waqf properties and highlights expert recommendations for reform. 1. Overlapping Jurisdictions and Fragmented Administration The governance of Waqf properties involves multiple entities, leading to jurisdictional overlaps and inefficiencies. Advocate H. Saleem explains: 1. "The State Waqf Boards (SWBs), Central Waqf Council (CWC), and Waqf Tribunals often operate in silos, resulting in confusion and delayed action." 2. SWBs are tasked with managing Waqf properties at the state level. 3. CWC serves as an advisory body that lacks enforcement powers. 4. Waqf Tribunals, established for dispute resolution, frequently face jurisdictional conflicts with civil courts. Advocate M. Riyas notes: "In many cases, disputes require coordination between SWBs, local authorities, and courts, prolonging litigation and leaving properties vulnerable to encroachments." 2. Weak Enforcement Mechanisms While the Waqf Act grants SWBs authority over Waqf properties, enforcement remains a challenge. Advocate A. Shamsuddin highlights: "The Boards can identify encroachments but lack the power to evict violators without court intervention, which significantly weakens their role." Key Issues Include: Encroachment Problems: Advocate Fathima Rahim states: "Rampant encroachments occur due to insufficient legal and administrative support, and cases often remain unresolved for years." Ineffectiveness of the CWC: As Dr. Zainuddin observes: "The CWC can advise but lacks the power to ensure compliance, reducing its ability to tackle corruption and mismanagement." 3. Inefficiencies in Waqf Tribunals Waqf Tribunals meant to expedite dispute resolution, face significant operational challenges. Advocate N. Basheer remarks: "The Tribunals are understaffed, lack adequate infrastructure, and face delays in resolving disputes, rendering them ineffective." Challenges Include: Resource Constraints: Many tribunals lack the resources to function efficiently. Jurisdictional Ambiguities: Advocate M. Riyas highlights: "Conflicts with civil courts over jurisdiction lead to further delays, frustrating stakeholders." Low Awareness: Dr. Zainuddin points out: "Many beneficiaries remain unaware of the Tribunals' existence, reducing their utility." 4. Inadequate Transparency and Accountability The Waqf Act lacks stringent provisions for ensuring transparency in the management of Waqf properties. Advocate H. Saleem notes: "Audits are either infrequent or superficial, creating room for financial irregularities." Key Concerns Include: Lack of Rigorous Auditing: SWBs often fail to conduct detailed audits. Minimal reporting requirements: Advocate Fathima Rahim adds: "Boards are not obligated to update the community regularly, leading to a lack of public scrutiny." 5. Ambiguities in the Definition of Waqf Properties Disputes often arise from unclear definitions in the Waqf Act. Advocate A. Shamsuddin states: "Conflicts with local authorities over the inclusion of public properties as Waqf assets create unnecessary legal battles." Unregistered Properties: Many properties remain unregistered, making them vulnerable to encroachments and misuse. Ownership Disputes: The absence of clear registration guidelines exacerbates disputes. 6. Loopholes in Leasing and Utilization Policies The Waqf Act permits the leasing of properties, but systemic flaws undermine its potential. Advocate M. Riyas explains: "Properties are often leased at undervalued rates due to collusion or corruption, resulting in significant revenue loss." Resistance to Modernisation: Legal restrictions discourage redevelopment of Waqf properties. Revenue Utilisation Issues: Advocate H. Saleem remarks: "There are no clear guidelines on how revenue should be allocated, leading to mismanagement." 7. Lack of Comprehensive Digitization The absence of a mandated digitisation process hampers efficient governance. Advocate Fathima Rahim states: "Without a centralised digital database, properties are prone to fraudulent transactions and mismanagement." While initiatives like the Waqf Assets Management System of India (WAMSI) have been introduced, implementation remains uneven. 8. Political Interference in Governance Political influence often undermines the independence of SWBs and Waqf Tribunals. Advocate N. Basheer observes: "Appointments are frequently based on political affiliations rather than merit, leading to inefficiency and resistance to reform." Politicization of Appointments: Dr. Zainuddin notes: "Political considerations often dictate board composition, compromising professional management." 9. Coordination Challenges with Other Laws The Waqf Act operates in isolation, leading to conflicts with land acquisition and urban development laws. Advocate A. Shamsuddin highlights: "Jurisdictional clashes with municipalities and local authorities often stall development projects on Waqf properties." 10. Ineffectiveness of Penal Provisions Penalties under the Waqf Act are insufficient to deter violations. Advocate M. Riyas states: "Encroachments continue unchecked because penalties are either lenient or rarely enforced." Recommendations for Reform Legal experts propose several measures to address these challenges: 1. Strengthening SWB Powers: Empower Boards to evict encroachers and recover assets without court intervention. 2. Enhancing CWC Authority: Grant the CWC enforcement powers to ensure compliance and address corruption. 3. Revamping Waqf Tribunals: Improve resources, staffing, and clarify jurisdiction to resolve disputes efficiently. 4. Mandating Transparency: Introduce mandatory auditing, digitization, and public disclosure requirements. 5. Updating Definitions and Guidelines: Amend the Act to provide clarity on property registration and utilization. Reducing Political Interference: Advocate Fathima Rahim suggests: "Establish merit-based criteria for appointments to ensure professionalism." Harmonizing Legal Frameworks: Align the Waqf Act with land and urban development laws to avoid conflicts. Conclusion As Advocate H. Saleem aptly concludes: "The legal structure governing Waqf properties in India has significant potential, but systemic flaws and weak enforcement hinder its effectiveness. Comprehensive reforms are essential to unlock the socio-economic potential of these assets." With legislative amendments and improved governance mechanisms, Waqf properties can be revitalized to serve their intended purpose of community development and welfare. ------ Also Read: Unlocking the Potential of Waqf Properties in India: A Legal and Policy Perspective ---- A regular columnist for NewAgeIslam.com, Mubashir V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance journalist. 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