Who really benefits from the Waqf Amendment Bill?

A fair assessment is needed of the Waqf (Amendment) Bill, 2024, introduced in the Lok Sabha on August 8, to understand its salient features and to see how these can improve the efficiency and administration of waqf properties or how they harm the cause of “one nation, one law” in the sense that they are at variance with similar laws such as the Bihar Hindu Religious Trusts Act, 1950; the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959; and the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (also applicable to Telangana).

A waqf is different from a “trust”. Unlike trust law (except to some extent in the Hanafi sect), the founder of the waqf cannot take any benefits for themselves. Second, unlike trusts, a waqf is perpetual, irrevocable, and inalienable. Finally, the property put in a trust vests in the trustee but that in a waqf vests in God.

Waqf is the most explicit expression of philanthropy in Islam and is a mode of redistribution of wealth. The owner of a property dedicates it to God, and its usufruct can be used in perpetuity for a pious, religious, or charitable purpose. The early Islamic state, being weak and lacking sufficient resources, encouraged Muslims to use their private properties to support social welfare initiatives.

The Quran does not mention waqf, but that does not mean it has no theological basis. It has at least 20 verses encouraging people to spend their wealth on charity. There are three types of waqf: waqf khari (public waqf), totally devoted to the welfare of humanity; waqf al-ahli or waqf alal-aulad (family waqf) for the benefit of family; and al-waqf al-mushtarak (public and family waqf) for both family and society. George Makdisi writes that all educational institutions in 11th century Baghdad were run by auqaf (The Rise of Colleges: Institutions of Learning in Islam & West). The Moorish traveller Ibn Battuta mentions several waqfs in Damascus in 1327, used for wedding gifts for women; serving food and clothes to travellers; improving roads, and so on.

“Thanks to the awqaf that flourished during the Ottoman empire, a person could have been born into a waqf house, slept in a waqf cradle, ate and drunk from waqf properties… been taught in waqf school… and when he died, placed in a waqf coffin and buried in waqf cemetery,” wrote Prof. Bahaeddin Yediyıldız of the University of Hacettepe, Türkiye.

As in other countries, Muslim rulers in India too generously created auqaf for the maintenance of mosques, madrasas, orphanages, graveyards, and so on. The mismanagement of waqf property is also known to have occurred because of human greed. Alauddin Khilji (1296-1316) punished corrupt mutawallis, or managers of waqfs. The services of several qazis (judges) were terminated for accepting bribes in auqaf matters during Akbar’s regime. It is due to corruption that the current Bill is ostensibly proposed.

Problematic provisions

A close reading shows that it has several problematic provisions that, rather than improving efficiency, may destroy waqf administration by making the reclaiming of waqf properties practically impossible, particularly from government encroachments.

The Waqf Bill proposes to replace the four-letter word “waqf” in Section 1(1) by the 50 letters “Unified Waqf Management, Empowerment, Efficiency and Development”. But a mere change of name will not improve efficiency.

Also Read | Propriety, not just property: The Waqf debate

The digitisation of auqaf is presented as a big reform, but on the basis of the Sachar Committee (2005) report, the United Progressive Alliance government had already launched a computerisation of records scheme under the National Waqf Assets Management System of India in 2009-10. As of September 1, 2024, 42 per cent of the records (3,66,432 properties) had been digitised. Some 58,878 properties are under encroachment. Section 3(B)(1) of the Bill gives just six months for complete digitisation, which is impractical.

The second question is of ownership. No Waqf Board owns any property; waqf properties are all owned by God. The 32 Waqf Boards in different States supervise the administration of waqf properties. The total area of Hindu religious institutions in Tamil Nadu, Andhra Pradesh, and Telangana alone is 47,800 acres, 4,65,000 acres, and 87,235 acres with an additional 7,123 acres with the Tirumala Tirupati Devasthanam—a total of 10,37,358 acres in just three States. Thus, to say that waqf is the third largest owner of properties after the Railways and Army is sheer propaganda with no factual basis. No public document has the exact area of waqf properties. The numbers quoted by the Sachar Committee or in the Press Information B ureau website are not attributed to any authoritative source.

Second, a false and motivated narrative was created that the Waqf Board can simply declare any property as waqf. Nothing can be further from the truth. Waqf properties are all private properties dedicated to charity.

The amendment has some positive features. Section 3A says that only a lawful owner can create waqf. This is exactly what Islam also mandates. Section 3(r)(iv) has inserted the words “maintenance of widows, divorced women and orphans”, which is good, but these purposes were already covered by the expression “welfare and other such purposes recognised by Muslim law”. Section 23 provides for the Chief Executive Officer to be of Joint Secretary level rather than a Deputy Secretary level officer, a welcome move. Section 83 provides that the District Judge instead of Civil Judge shall be the chairman of the Waqf Tribunal. Section 84 mandates that the tribunal will give decisions within six months. Section 64 provides for the removal of a mutawalli if he fails to maintain accounts without reasonable cause for a year.

Although the Waqf Acts of 1954 and 1995 permitted only Muslims to create auqaf, the 2013 amendment removed this unjustified restriction. The 2024 Bill has revived the earlier restriction by deleting Section 104 and making it more stringent by insisting that only a person who has been a Muslim for five years can create a waqf. This violates the ownership rights of non-Muslims, as they are free to do what they want with their properties. The 17th century Fatwa Alamgiri, compiled by over 40 prominent ulemas, clearly states that non-Muslims can make waqf. In Piratho Peda Venkatasubbarayudu v. Haji Silar Saheb (1930), the Madras High Court said it was common for Hindu zamindars to make Muslim endowments. Similarly, in Arur Singh v. Badar Din (1940), the Lahore High Court upheld the right of a Hindu to make his property a waqf for a Muslim graveyard. Since Hindu endowment laws do not prohibit non-Hindus from creating Hindu endowments, this provision opposes the “one nation, one law” dictum.

The Bill’s proposal under Sections 9 and 14 to include women, Other Backward Class Muslims, and non-Muslims in the waqf administration should be welcomed, as diversity improves decision-making, but at least on women’s representation, the Bill is going backwards. The 1995 law provides for “at least two women”, whereas the new Bill makes it a maximum of two women. Representation for Muslim OBCs is good, but OBC is a socio-economic class or caste category and not a “religious denomination or any section thereof” under Article 26. The right to establish and manage religious institutions is the right of religious denominations and religious sects. Similarly, non-Muslims in Waqf Boards under Sections 9 and 14 may make positive contributions, but they do not belong to any Muslim religious denomination or section thereof.

Moreover, since even all Hindus—defined in Article 25 of the Constitution as Sikhs, Jains, and Buddhists—cannot be members of temple boards, unless the government is willing to admit non-Hindus, Hindu Dalits, and OBCs in temple boards, such a provision for Waqf Boards alone goes against the policy of “one nation, one law”. Is it not absurd that while non-Muslims cannot be allowed to create a waqf, they can be members of Waqf Boards under the Bill?

For any property to become a waqf property, some major procedural hurdles are to be crossed. Survey commissioners, public servants appointed by the government, evaluate evidence, collect testimonies and scrutinise tax and revenue records and, with all the powers of the civil court, make recommendations to Waqf Boards, which then make recommendations to the State governments. Only after a State government notifies it in the official gazette a property is declared as waqf.

The Bill now proposes to abolish survey commissioners and vest their powers in the District Magistrates. Compared with the generalist District Magistrates, survey commissioners are specialists. Moreover, since there are cases of alleged encroachments by the government itself, a government officer cannot decide such claims. In title disputes, the government cannot take advantage of its law-making powers and create presumptions in its own favour. This should ideally be decided either by judges or quasi-judicial tribunals. Section 40, giving powers to the Waqf Boards to declare properties as waqf, was indeed problematic, but conferring similar powers to District Magistrates makes the remedy worse. In the case of Hindu endowments, Collectors do not have a role to play nor are there survey commissioners. Hindu endowment officers register properties as Hindu endowment properties on their own.

Abolition of waqf by user

The new Bill proposes to abolish waqf by user. This provision goes against even the Babri mosque judgment in M. Siddiq (2019), which categorically recognised the concept of waqf by user when the court observed that “our jurisprudence recognises the principle of waqf by user even absent an express deed of dedication or declaration. Whether or not properties are waqf property by long use is a matter of evidence.”

Most old graveyards are waqf by users and may not have waqf deeds. The concept of “immemorial user” is recognised under British common law and under Hindu endowment laws. Waqf by user was allowed by the Waqf Act of Bengal, 1934, and Bihar, 1947; Uttar Pradesh Muslim Waqfs Act, 1960; and Central Acts of 1954.

Waqf tribunals have been needlessly weakened. It is not clear why the government has such a distrust of tribunals when all tribunal members are appointed by it. The Bill has removed the third member, who was meant to be an expert on Islamic law. A bogey was deliberately created about the absolute finality of a waqf tribunal’s decisions. But the decision of the Hindu Endowment Tribunal in Telangana and Andhra Pradesh under Section 85(3) is final. In Tamil Nadu, decisions by the Joint Commissioner of Endowments are final under Section 79A (3). Under the 1995 Waqf law, the High Court itself can transfer a case to itself, and any aggrieved party also has the right to challenge a tribunal’s decisions in the High Court.

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

In several other areas too, the “one nation, one law” principle is infringed. First, the Bill proposes to delete Section 108 that gives overriding effect to the Waqf Act. But such a provision exists in the Andhra and Telangana Acts and in the Tamil Nadu Act as well. Almost all University Acts too have such a provision. Second, the Bill has deleted Section 107 that exempted waqf disputes from the Limitation Act, 1963, purportedly to improve the efficiency of waqf. But it would have the opposite effect, as waqf claims can no longer be filed after the expiry of the limitation period, making waqfs more vulnerable. Here again, such exemptions are there in Hindu endowment laws; Section 143 of the Telangana and Andhra Acts, and Section 109 of the Tamil Nadu Act.

Third, while Hindu endowments are governed by State Acts, a Central law has governed auqaf since 1954 even though land is a State subject. The new Bill denies States even the power to frame waqf rules.

Finally, we come to family waqf. Islam considers anything spent on one’s family the best expenditure. Family waqf has been used to overcome problems of Islamic inheritance laws such as allowing grandfathers to make a waqf of one-third of their property in favour of orphaned grandchildren.

Several Muslim countries abolished family waqfs or restricted it to just two generations. Had the Waqf Bill abolished family waqf or restricted it to two generations, it would have been a big-ticket reform. The Bill proposes a different reform: that family waqf shall not result in denial of inheritance rights to heirs, including women heirs. This is welcome in that a Muslim can now create a family waqf of only one-third his property if he is excluding his heirs and he cannot altogether exclude female heirs. But the problem is that if he gives even a token benefit to female heirs, much less than they are otherwise entitled to under Muslim laws of inheritance, such a family waqf would still remain valid. The other problem again is that similar restrictions do not exist on the testamentary powers of non-Muslims. A Hindu, for instance, under the Hindu Succession Act, 1955, can give away his entire property to a son to the exclusion of other heirs, including female heirs.

Waqf is an integral part of a Muslim’s life and, therefore, part of his freedom of religion. The entire institution of waqf cannot be made vulnerable due to the corruption and mismanagement of some managers. Is there no corruption in the government itself?

Faizan Mustafa is a constitutional law expert and Vice Chancellor, Chanakya National Law University, Patna. The views expressed are personal.