Right move, wrong motive? Waqf Bill promises better management but delivers state control

Addressing a rally in Gurugram in September, Union Home Minister Amit Shah declared that the Waqf (Amendment) Bill, 2024, would be passed in the coming winter session of Parliament. His announcement immediately triggered outrage among sections of the minority community, opposition leaders, and civil society members, who—given the government’s track record in pushing through a majoritarian agenda—saw in this another attempt to bring in a law that could have wide-ranging ramifications for the Muslim community and its rights.

But are the concerns against the proposed Bill warranted? To answer this question, one must analyse the legislation in its entirety. To start with, a basic understanding of what “waqf” means is necessary. “Waqf” means the permanent dedication of movable or immovable property for the purposes enshrined in Islam as pious, religious, or charitable. Historically, the administration of waqf institutions was entrusted to different entities at different times in India.

Waqf in detail

During the rule of Muslim dynasties, waqf administration was decentralised and controlled by provincial and district officers, such as the sadr-e-subah, the sadr-e-sarkar, and khazis. There were also a separate department to look after the religious endowments, known as Aiwan-e-Mazhabi or Umoor-e-Mazhabi.

Before Independence, the Hyderabad state had an ecclesiastical department that looked after the administration of religious and charitable endowments, including waqf. As per Islamic jurisprudence, the donor of a waqf property has the power to nominate an administrator or a curator, who is known as mutawalli. In British India, endowment properties were regulated by specific enactments such as the Religious Endowments Act of 1863 and the Charitable Endowments Act of 1890.

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The first piece of legislation exclusively on waqf was the Mussalman Wakf Validating Act, 1913. This Act validated family waqfs without retrospective effect.

However, after representations to the British Crown, the Mussalman Wakf Validating Act, 1930, was legislated, which accorded retrospective validity to all family waqfs and extended it to the whole of India. Before this, the Mussalman Wakf Act, 1923, was enacted to ensure better administration of waqf institutions and their properties. However, the Mussalman Wakf Act of 1923 left the dispute resolution mechanism to civil courts, which formulated the scheme of administration for some waqf institutions.

After Independence, it was considered appropriate to have a separate body for the governance of the waqf institutions at the State level. The Waqf Act of 1954 was enacted, which provided for the incorporation of Waqf Boards at the State level and the Central Waqf Council at the Central level. It was amended several times to meet emerging challenges. Also, the Supreme Court has upheld the validity of the waqf laws time and again.

The decline of waqf administration

By the 1990s, waqf administration was falling into decadence. So, the government perceived the need to enact a comprehensive piece of legislation for the effective administration of waqf institutions in the country, and this resulted in the Waqf Act, 1995; all previous laws in this regard were nullified. This Act democratised the process of constitution of State Waqf Boards and regulated and controlled, to a large extent, the alienation and leasing of waqf properties.

Subsequently, there were several recommendations by Joint Parliamentary Committees (JPCs) and House committees of State legislatures, apart from other bodies and citizens, and these culminated in the Waqf (Amendment) Act, 2013.

This year, Kiren Rijiju, Union Minister for Minority Affairs, tabled the Waqf (Amendment) Bill, 2024, in the Lok Sabha on August 8, to the vehement opposition of the opposition parties.

The Bill’s statement of objects and reasons states: “It has been observed that the Act still requires further improvement to effectively address issues related to the powers of the State Waqf Boards, registration, and survey of waqf properties, removal of encroachment including the definition of ‘waqf’ itself.”

BJP’s Bill and its negative impact

However, a careful reading of the Bill suggests a negative impact on waqf administration. It speaks about addressing the powers of the State Waqf Boards, but the fact is the Bill snatches away the powers available to the Waqf Boards under the existing Act. The determination of waqf property or the removal of encroachment on and the registration of waqf property have been assigned to revenue officials.

The Bill also seeks to amend Section 1 relating to short title of the Act from “the Waqf Act, 1995”, to “the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995.” Renaming of the Act is unnecessary.

The Bill is selective in wanting to nominate non-Muslims to the Waqf Boards but at the same time bars them from creating a waqf or donating property to a waqf. It proposes to insert new sections (3A, 3B, and 3C).

The major change that the Bill attempts under clause 3 is to change the nature of waqfs and the waqf administration through an amendment of the definitions of the terms under Section 3 of the Act.

The additional classification of waqf under Section 3, such as Aghakhani waqf and Bohra waqf is welcome, as it is a further classification of waqf apart from Shia and Sunni.

Revenue authorities in charge

The insertion of additional words such as Collector, government organisation, government property, portal, and database gives an indication of the motivation behind the formulation of the Bill. The Bill also suggests deleting the term “Survey Commissioner of Waqf” from the definitions. Clause 5 of the Bill seeks to replace the Survey Commissioner of Waqf with the District Collector and Magistrate, who would make the survey in accordance with the procedure laid down in the revenue laws of the State concerned.

Transferring the function of surveying properties to revenue authorities, who are already grappling with a number of tasks assigned to them by the government such as Census, social surveys, and preparation of voters’ lists, apart from routine work is ill-advised. So the office of the Survey Commissioner should be retained, irrespective of its role in waqf administration in the coming days, because it is also mentioned in various historical records, reports, and judgments. Abolishing the office would push waqf institutions into undesired and avoidable litigation.

Muslims, non-Muslims, and waqf

The Bill also provides a distorted definition of waqf. The new definition says that only a Muslim who has practised Islam for the last five years can dedicate a property towards waqf.

As per Islamic law, a non-Muslim can constitute a waqf, and there is no bar for a non-Muslim to be a mutawalli of a waqf institution. So, why should donation by a non-Muslim be barred?

If this is comes into practice, then the waqf consecrated or donated by non-Muslims would be in jeopardy. The Hindu endowments law (Section 3 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987) does not bar a non-Hindu from creating a Hindu endowment. The courts have also recognised the creation of waqf by a non-Muslim as valid. In Motishah v. Abdul Gaffar (AIR 1956 Nag. 38), the verdict said: “Islam is not a necessary condition for the constitution of a wakf and any person of whatever creed may create a wakf.” In the case of Arur Singh v. Badar Din (AIR 1940 Lahore 119), the dedication of land for a graveyard by a Hindu was held to be valid. The existing section is a symbol of India’s syncretic culture. Therefore, this proposed amendment is in bad taste.

Family waqf

“Charity begins at home” is the concept behind the family waqf. Islamic law provides for the creation of waqf for the family members of the dedicator. The owner of a property, after settlement of his loans and dues, can dedicate a part of his property for the education or welfare of the members of his family from generation to generation.

However, as per the Bill, the family waqf can be created only after fulfilling the rights of all the heirs of the waqif, or waqf creator. This leads us to the question: If the family waqf is to be created after fulfilling the rights of all the heirs, what will remain with the creator of the waqf to create one? If the owner of a property can execute a will during his lifetime surpassing the inheritance rights under general laws of the country, why should the creator of a waqf be denied such a right? This amendment amounts to restricting individual rights and liberties.

Under Muslim law, an oral gift is acceptable. The Transfer of Property Act, 1882, recognises an oral gift by a Muslim. Creation of a waqf means transfer of one’s property to God and the owner relinquishes all his rights whatsoever over such property. When a waqf is created on the oral instructions of the owner of the property, it may not have documents or deeds. In the absence of the documents or deed, the only proof is the usage or reputation of such property for the purpose of waqf. The Easements Act, 1882, also recognises the rights of such users.

Waqf by user

“Waqf by user” comes into existence when a waqf is dedicated orally or when the documents are lost or have perished. The waqf laws in India have also recognised such waqf. But the Bill attempts to derecognise these waqfs. Such attempts will lead to a chaotic situation where unscrupulous elements may grab the properties of such waqfs. Such amendments could dismantle centuries-old waqf institutions. Derecognising “waqf by user” is also against the spirit of the Place of Worship (Special Provisions) Act, 1991, which protects all places of worships as they existed as on August 15, 1947.

Section 5 deals with the publication of a list of waqfs in the official gazette. The Bill inserts new subsections (2A) and (2B) to upload the notified list of waqfs on the portal and database within 15 days. The proposed amendment provides procedural matters and the details of waqfs that are to be incorporated into the portal and database electronically. The task of deciding whether a particular property is waqf or not is being entrusted to revenue authorities.

This amendment also increases the period to raise objections to the published list of waqfs from one year to two years. If a tribunal’s decisions are open to be challenged for a longer period, it will only provide leverage to litigants and increase the number of legal cases.

Section 3B under clause 4 of the Bill prescribes that all existing waqfs should file details of the waqf and the properties within six months of the commencement of the amended Act.

The database and updation of waqf records electronically is a perennial process, which can be regulated from time to time through office orders and office memoranda. The period of six months prescribed for uploading the details of waqf institutions in the entire country is also insufficient.

Non-Muslim members

The Waqf Act, 1995, under Section 9 provides for the constitution of a Central Waqf Council. Clause 9 of the Bill seeks to amend this provision to redraw the composition of members of the Central Waqf Council for the nomination of two non-Muslim members, among others. In one provision, the Bill prescribes that only a practising Muslim can create a waqf, and in this amendment, it wants to accommodate non-Muslims to the Central Waqf Council.

Section 14 of the Waqf Act speaks of the establishment and composition of the State Waqf Board. There has been a democratised system of election in the composition of the Waqf Board, under Section 14, with electoral colleges under various segments such as Muslim members of the State legislature, Muslim MPs from the State, Muslim members of the Bar Council of the State, mutawallis of waqf institutions, and so on. This democratised structure of the Waqf Board is demolished under clause 11 in the Bill, which paves the way for the nomination of members by the State government. Under the proposed amendment, even a non-Muslim MP, a non-Muslim MLA, or a non-Muslim member of the State Bar Council can be nominated to the Waqf Board.

The Bill further proposes members of local bodies and municipalities for nomination to the Waqf Board. This provision creates an imbalanced composition of the Waqf Board wherein members of panchayats and municipalities would be equal members of the Waqf Board alongside Members of Parliament.

The members of municipalities and panchayats do not have any significant role or expertise in the functioning of the Waqf Board or waqf institutions. However, members of municipalities and panchayats can be considered for nomination to the District Waqf Committees.

It is pertinent to mention here that based on the recommendations of the Justice Sachar Committee, the Waqf Amendment Act of 2013 has already provided for the nomination of women members to the Central Waqf Council and the State Waqf Boards. But the addition of two non-Muslim members would amount to adding a fifth wheel to the vehicle of waqf.

CEO appointment

Section 23 of the Waqf Act pertains to the appointment of a CEO and his/her term of office and other conditions of service. The Bill, under clause 15, proposes that the CEO shall hold the position equivalent to Joint Secretary to the State government. However, it does not prescribe that the CEO be a Muslim. While it may be argued that a Muslim CEO may better understand waqf affairs, one must also note that it is often difficult to find a suitable Muslim officer of Joint Secretary rank for the post. The insertion of subsection 9 under Section 36, making a provision for the issuing of a registration certificate, is unnecessary. Further, the addition of subsection 10 under this section would be detrimental to the cause of waqf as it states that no appeal, suit, or legal proceedings shall be maintainable for the waqfs that have not been registered under this Act.

The Bill, under clause 19, proposes an amendment under Section 37, which supersedes the powers of the State government and assigns those powers to the Central government. Under this proposed amendment, the revenue authorities come into the picture, which may be a hindrance.

Welcome proposals

Under clause 10, the Bill seeks to establish a separate board of waqfs for Bohras and Aghakhanis under Section 13, which may be appreciated.

Clause 12 of the Bill seeks to amend Section 16 of the Waqf Act 1995 relating to the disqualification of a member of the Waqf Board. It also includes a conviction, and imprisonment of two years or more for any offence as a ground for disqualification.

The Bill, in clause 13, seeks to amend Section 17 of the Waqf Act, 1995, relating to meetings of the Waqf Board, which it proposes should be held at least once a month. Both these proposals are welcome.

Clause 18 of the Bill proposes a condition under Section 36 of the principal Act that the execution of a waqf deed is necessary for the institution of a fresh waqf. This is already in practice in various Waqf Boards. This suggestion is a good one.

Undermining State Waqf Boards

The powers of the State government and the State Waqf Boards are undermined and the powers of the Central government are consistently insisted in the Bill.

The Waqf Board cannot act without clearance from the district revenue authorities, which is unwarranted. Anyone can complain, creating an impediment in the registration or survey of waqf properties.

Clause 20 of the Bill seeks to omit Section 40 of the principal Act pertaining to the “decision, if a property is waqf or not”. The proposed amendment will curtail the powers of the Waqf Board in deciding and determining whether a particular property or institution is a waqf or not, and if it is a waqf, whether it is a Shia waqf or a Sunni waqf.

Collector to be arbiter

The Bill proposes to entrust the District Collector with the responsibility of adjudicating matters relating to waqf properties in their jurisdiction. Moreover, the Collector is also authorised under the proposed amendment to carry out the necessary entries and corrections in the official records and inform the Waqf Board. This would turn the Waqf Board into a toothless organisation and a mere spectator.

When a matter is under consideration by the Collectorate or the revenue authorities, it often takes years to get clearance and to settle the matter. It may be pertinent to mention that government officials are prone to get influenced by politicians and unscrupulous elements.

The Waqf Board comprises scholars, advocates, public representatives, and eminent social activists, as per the Act, so it is better placed to decide such matters than government officials. If such amendments are carried out, the nefarious agenda of politicians and disgruntled elements will prevail upon the government/revenue officials.

Such decisions would be imposed on the helpless and powerless Waqf Board. This amendment does not allow the Waqf Board to return the findings of revenue officials for re-examination. Section 46 of the Waqf Act pertains to the “submission of accounts to the Waqf Board by the mutawalli”. Here again, the Bill attempts to strip the powers of the Waqf Board. If the powers of the Waqf Board are trimmed, it will end up as a mere spectator rather than an active body.

Section 110 empowers the Waqf Board to frame regulations in respect of its functioning under the Act. But again, the Bill in clause 44 proposes to assign many of these powers to the Central government, which only ends up making the Waqf Board a toothless entity.

The duties of the mutawalli are mentioned in Section 50 of the Act, and failing to discharge them will disqualify the mutawalli. The Bill, in clause 24, proposes additional qualifications for a person to be appointed as a mutawalli and proposes to insert an additional Section 50A. This is a welcome amendment.

The proposal to return alienated waqf properties to the waqf institution rather than the Waqf Board is also appreciated. The Bill seeks to reduce the punishment for illegal alienation of waqf property from rigorous imprisonment to simple imprisonment under Section 52A.

However, while the Waqf Board shall have the power to take action against delinquent mutawallis, the Bill authorises the District Collector to impose a penalty and punish the mutawalli. The power of the Waqf Board to take punitive action against the mutawalli shall not be snatched away.

Section 83 of the Waqf Act prescribes the constitution of a Waqf Tribunal. The Bill under Clause 35 seeks to simplify the composition of the tribunal, which is appreciated. Section 84 of the Waqf Act, 1995, prescribes that the Waqf Tribunal furnish copies of its orders to the parties concerned. The Bill, in clause 36, assigns six months for the disposal of cases by the tribunal. This is a good proposal, although difficult to implement.

The Bill also proposes to delete the words “the decision of the Tribunal is final”, wherever it is mentioned in the principal Act. Such an amendment may weaken the strength of the tribunal.

Normally, the decision of any tribunal is considered to be final. But the party aggrieved by the orders of the tribunal can always approach the High Court by way of writ petition.

Making waqf properties vulnerable

Section 107 of the Waqf Act 1995 protects waqf properties from the provisions of the Limitation Act, 1963. Even Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, protects Hindu endowment properties from the Limitation Act.

But the Waqf (Amendment) Bill, under clause 41, proposes to delete this section, which may make waqf properties vulnerable to encroachment and make the recovery of such properties difficult. Section 108A of the Waqf Act provides it an overriding effect over any other laws, which is being withdrawn under clause 41 of the Bill.

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It will weaken the position of the waqf properties and make them vulnerable to encroachment. The Bill narrows down the role of the State government in framing the rules and regulations for the administration of waqf institutions and Waqf Boards by amending Section 109 of the principal Act. This amendment empowers the Central government to formulate the rules and regulations for the administration of waqfs.

In the past several decades, the Central and State governments have constituted a number of commissions and committees to inquire into the pathetic condition of waqf administration. Several JPCs and House Committees of the State Legislature have submitted recommendations to improve the dismal performance of waqfs.

On the recommendations of the Justice Sachar Committee, the National Waqf Development Corporation was established in 2013, with a paid-up capital of Rs.100 crore. A JPC headed by K. Rahman Khan in 2008-09 recommended, among other things, the digitisation of waqf records. But no action has been taken since.

The existing waqf law is not a bad one, but many of the proposed amendments in the Bill will cause more harm than good to the cause of waqf. An immaculate administration of waqfs can be ensured with the dedication and devotion of its administrators, accountability, and astute timely action by all the stakeholders.

P.S. Munawar Hussain is Joint Registrar (Retd), Maulana Azad National Urdu University, Hyderabad. He is also the author of Muslim Endowments, Waqf Law and Judicial Response in India (Routledge).