Rooted in Islamic tradition, waqf is a timeless institution that stands testament to the principles of community and social welfare. Derived from the Arabic term “waqafa”,” literally meaning to “tie up, bind or detain”, waqf refers to the consecration or dedication of property—movable or immovable—towards the approbation of the divine.

The key feature of this dedication is its perpetuity; the property once committed to waqf belongs to the divine, its benefits are meant to serve one’s family, community, institution, or any pious cause indefinitely. Technically, to any good cause or purpose that secures any benefit to human beings.

The concept of waqf has played an integral role across cultures and societies, particularly in India, where it has served as a tool for both religious and social welfare.

The recent proposals to amend certain sections of the Waqf Act raise significant concerns about the fundamental nature of waqf, its religious underpinnings, and the potential legal and social implications of such changes. There are three pivotal changes that are fundamental to the concept itself and, if allowed, will change the character and meaning of waqf as it is traditionally meant to be.

Islam as a precondition for creation of waqf

The proposed amendment to Section 3, Clause (r), introduces a significant change by specifying that only a person “practicing Islam for at least five years” may create a waqf from their movable or immovable property. This amendment replaces the previous phrasing, which simply allowed “any person” to establish a waqf. The new text seems to impose a stricter condition based on religious practice.

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One major concern with this amendment is the introduction of a vague and unclear legal standard. The phrase “practicing Islam” is open to interpretation, especially in cases where individuals may follow Islamic principles without having formally converted to the religion, raising the question of what constitutes “practicing Islam” under the law.

Moreover, the amendment does not explicitly require the individual to be a Muslim, which creates confusion and ambiguity about who qualifies as eligible to create a waqf.

Introducing a requirement that the person must have practiced Islam for at least five years raises questions about the waqif’s (creator) religious competency and whether they meet the legal standard for establishing a waqf. The resulting confusion could lead to a rise in legal disputes, as courts may have to determine whether an individual qualifies as having “practiced Islam” sufficiently to create a valid waqf.

Perhaps most critically, the restriction based on religious practice contradicts the very essence of waqf as understood in Islamic tradition. Historically, waqf has never been restricted by the religious practice of the individual creating it. In fact, Islamic doctrine has long held that a waqf can be created by any individual, regardless of their religion, so long as the person creating the waqf is free, of full age, (i.e. an adult), and possessed of sound understanding (i.e. must be sane).

As a general rule all persons capable of making a valid gift are competent to constitute a valid waqf. Since the time of Prophet Muhammad, the creation of waqf has been seen as a matter of divine approbation, not necessarily tied to the creator’s religious identity.

This inclusive tradition is evident in Indian history, where non-Muslim rulers and citizens have contributed significantly to the waqf system by donating properties for mosques, idgahs, imambaras, and dargahs. Similarly, Muslim rulers in India have contributed to the construction of temples and other religious institutions for non-Muslim communities. The proposed amendment undermines this rich history of religious inclusivity.

Perpetuity of Waqf

One of the cornerstones of the waqf system is the concept of perpetuity. Once a waqf is established, the waqif relinquishes their proprietary rights over the property, which is then transferred to the Almighty in perpetuity.

In the case of waqf-alal-aulad, the waqif relinquishes ownership of the property and the rights to the property are irrevocably vested in the waqf. Once a waqf is created, neither the waqif nor their heirs retain any proprietary rights over the property, except for the right to enjoy its proceeds in accordance with the terms of the waqf.

Therefore, the property is no longer subject to inheritance, as it has already been dedicated to the waqf and Islamic law clearly states that a waqf-alal-aulad property is inalienable and non-inheritable.

Introducing inheritance rights into the framework of waqf-alal-aulad contradicts this fundamental principle and disrupts the perpetual nature of the waqf. It directly conflicts with the religious nature of waqf and its principles that prioritise the dedication of property to ultimately benevolent causes over personal or familial inheritance.

The proposed insertion of Section 3A states that the creation of a waqf-alal-aulad “shall not result in the denial of inheritance rights of heirs, including women heirs, of the waqif”. This proposed amendment undermines the religious sanctity of waqf and introduces legal ambiguity into a practice that has been clearly defined in Islamic law for centuries.

Since the creation of waqf-alal-aulad is considered a religious practice, any statutory interference that alters its fundamental nature may violate the constitutional right to religious freedom.

Giving in Islam

Within the context of Islam, supporting one’s family is seen as a charitable and pious act, particularly when wealth is dedicated for future generations through a waqf-alal-aulad. This type of waqf involves dedicating property for the benefit of one’s family and descendants, and once the family line is exhausted, the income is directed toward charitable purposes.

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Under Islamic jurisprudence, the waqif is expected to devote the property’s proceeds first to their children and kindred, and then to charitable causes. This order of precedence is rooted in the teachings of the Prophet Muhammad, who advised that the income from a waqf should benefit one’s family first, and only when the line of succession is exhausted should it extend to other charitable purposes.

The proposed amendment to Section 3, Clause (r), Sub-Clause (iv), seeks to insert provisions specifically for the “maintenance of widow, divorced woman, and orphan” as part of the waqf-alal-aulad. This introduction of specific provisions for widows, divorced women, and orphans, though benevolent, conflicts with the established concept of waqf-alal-aulad as prescribed by Islamic law. The proposed amendment interferes with the religious rights of the waqif by altering the order of precedence for the use of waqf proceeds.

The prescribed order of precedence in waqf-alal-aulad is considered a religious duty, and any legislative interference that seeks to alter this framework may infringe upon the waqif’s religious right and risks infringing on the spiritual essence of waqf.

Impacts individuals’ constitutional rights

The proposed amendments to the Waqf Act raise significant concerns about the how they will impact the integrity of the waqf system, its religious underpinnings, and the constitutional rights of individuals. Any legislative changes to the waqf system must be carefully considered to ensure that they do not infringe on religious practices or violate the constitutional rights guaranteed to individuals. In a country like India, with its legacy of religious freedom and cultural diversity, where diversity and religious freedom are enshrined in the Constitution, it is essential to preserve the sanctity of waqf and protect its role as a tool for social welfare, charity, and devotion.

Rushda Khan is a lawyer practising in the Supreme Court.

“Waqf” means the permanent dedication of movable or immovable property for the purposes enshrined in Islam as pious, religious, or charitable. The administration of waqf institutions was entrusted to different entities at different times in India.

During the Muslim Rule in India, the waqf administration was decentralised and controlled by provincial and district officers, such as the Sadr-e-Subah, Sadr-e-Sarkar, and khazis. There were also a separate department to look after the religious endowments, such 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 the Islamic jurisprudence, the settler of waqf or the donor of endowed property has the power to nominate an administrator or a curator, who is known as Mutawalli. In British India, the endowment properties were regulated by specific enactments such as Religious Endowments Act of 1863 and Charitable Properties Act of 1890.

The first piece of legislation exclusively on waqf was the Mussalman Waqf Validating Act 1913. This Act validated family waqfs (waqf-alal-aulad) 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 (waqf-alal-aulad) and extended it the whole of India. The Mussalman Wakf Act, 1923, was enacted to ensure better administration of waqf institutions and their properties. The Musalman Wakf Act of 1923 left the dispute resolution mechanism to civil courts, which have formulated the scheme of administration for some of the 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 Wakf 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. The Wakf Act, 1954, was amended several times to cope with the emerging challenges. The validity of the waqf laws was time and again upheld by the Supreme Court.

The waqf administration was falling into decadence. So, it was felt necessary to have a comprehensive piece of legislation for the effective administration of the waqf institutions in the country, which resulted in the legislation of the Waqf Act, 1995, and all the previous legislations in this regard were nullified. This Act has democratised the process of constitution of State Waqf Boards and the alienation and leasing of waqf properties were regulated and controlled to a large extent. There have been several recommendations by the Joint Parliamentary Committees and House committees of the State legislatures apart from other bodies and citizens, which culminated in the Waqf Amendment Act of 2013.

The Union Minister for Minority Affairs tabled the Waqf Amendment Bill, 2024, in the Lok Sabha recently, which was vehemently opposed by the Opposition parties. The statement of objects and reasons states that “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”.

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But, in fact, a careful reading of the Bill suggests a negative impact on the waqf administration. It speaks about addressing the powers of the State Waqf Boards, but in fact the Bill has snatched away the powers available to the Waqf Boards under the existing Act. Determination of waqf property or removal of encroachment and registration of waqf has been assigned to the revenue officials. The amendment proposes a distorted version of definition of waqf. The proposed amendments are analysed in the following paragraphs.

The Bill 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.

Distortions in definitions

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 welcomed, as it is a further classification of waqf apart from Shia and Sunni.

The insertion of additional words such as Collector, Government Organisation, Government Property, portal, and database will determine the motivated direction for which the Bill is formulated. The Act suggests deleting the term “Survey Commissioner of Waqf” from the definitions. It should be retained irrespective of its role in the waqf administration in the coming days, because it is mentioned in various records, reports, and judgments.

The definition of waqf may be retained as it is, as the proposed definitions do not qualify the principles of Islamic Law. The new definition says that a Muslim who has practised Islam for the last five years can dedicate a property towards waqf. Under Islamic law, even a non-Muslim can create a waqf. If dedication is required to be from a Muslim to qualify as waqf, then the waqf consecrated by the non-Muslim nobles would be jeopardised. But at the same time, the Amendment Bill makes provisions for non-Muslims as members of the State Waqf Board and the Central Waqf Council. The Bill is selective in nominating non-Muslims to the Waqf Boards and at the same time bars them from creating a waqf or donating the property to a waqf. It proposes to insert new sections (3A, 3B, and 3C).

As per the Amendment Bill, the family waqf (waqf-alal-aulad) can be created only after fulfilling the rights of all the heirs of the waqf. If the family waqf is to be created after fulfilling the rights of all the heirs, what remains with the creator of waqf, to create one? If the owner of a property can execute a will during his lifetime surpassing the inheritance rights under Hindu family laws, why should the creator of a waqf be denied such a right?

The Islamic Law recognises the waqf, which has been in use for decades as “waqf by user” or “waqf by reputation”. The waqf laws in India have also recognised such waqf as the documents of the old waqfs may have been lost or perished. But the Amendment Bill attempts to derecognise these waqfs. Such attempts will lead to a chaotic situation where unscrupulous elements may grab the properties of such waqfs.

Section 3B under clause 4 of the Amendment Bill prescribes that all the existing waqf should file the details of the waqf and the properties within six months of the commencement of the Amendment Act 2024. 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 memorandums. The period of six months prescribed for uploading the details of waqf institutions in the entire country is also insufficient. The district collector is being entrusted with the responsibility of adjudicating matters relating to waqf properties in his 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 makes the Waqf Board a toothless organisation and a silent 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 here that government officials are prone to get influenced by the politicians and unscrupulous elements.

Office of Survey Commissioner of Waqf abolished

Section 4 of the Act pertains to the survey of the waqf properties by the Survey Commissioner of Waqf. Clause 5 of the Amendment Bill seeks to replace the Survey Commissioner of Waqf with the District Collector, thereby conferring powers upon the collector to make the survey in accordance with the procedure laid down in the revenue laws of the State. The abolition of the office of the Survey Commissioner of Waqf, which has been exclusively crafted to look after the survey of waqf properties and submit its report to the government and the Waqf Board, would lead to pushing waqf institutions into undesired and avoidable litigations. The survey of properties is being transferred to revenue authorities, who are already grappling with a number of tasks assigned to them by the government such as the census, social surveys, and preparation of voters list, apart from their routine work.

Section 5 deals with the publication of a list of waqfs in the official gazette. The Amendment Bill inserts new sub-sections (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 the revenue authorities.

The Bill proposes to delete the words “the decision of the tribunal is final”, wherever it is mentioned in the principal Act. This amendment increases the period to raise objections to the published list of waqfs from one year to two years. This will provide leverage to the litigants and increase the number of cases, if the decisions of the tribunal are open to be challenged for a longer period.

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 Amendment 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. Under clause 10, the Bill seeks to establish a separate Board of Waqfs for Bohras and Aghakhanis under section 13, which may be appreciated.

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, etc. 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, non-Muslim MLA and a non-Muslim member of the State Bar Council can be nominated to the Waqf Board. The qualification prescribed for consecration of waqf or for a waqif is that he should be a practising Muslim for the last five years, but the proposed amendment does not make it obligatory for the nomination of Muslim MPs or the State legislature or member of the State Bar Council.

A fifth wheel

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 where the members of the panchayat and the municipalities would be equal members of the Waqf Board alongside MPs. The members of municipalities and the 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.

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. This may be appreciated. 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. This amendment is also appreciated.

CEO: Higher designation, lesser powers

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 to enhance the position of the CEO from Deputy Secretary to government to Joint Secretary to government. The Justice Sachar Committee had recommended that the CEO should be a high-ranking officer of the State Government. The Bill says that the incumbent to the post of CEO shall hold the position equivalent to the Joint Secretary to Government. However, it does not prescribe that the CEO be a Muslim. It is argued that a Muslim CEO may better understand the affairs of waqf and may work with dedication. At the same time, it is difficult to find a suitable Muslim officer in the rank of Joint Secretary to government to be appointed to the post of CEO. But, this proposed amendment is not bad.

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 fresh waqf. This is already in practice in various Waqf Boards. This suggestion is good. The Bill insists on a database and portal that do not exist. 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 District Collector/District Magistrate is assigned a greater role, restricting the authority of Waqf Boards in matters of registration and survey of waqf properties. 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 institutions.

No redress to un-registered Waqfs

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 picture, which may be a hindrance.

Powerless Waqf Board

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 Sunni waqf. The Waqf Board comprises scholars, advocates, public representatives, and eminent social activists, as per the Act, so it is better placed in deciding such matters rather 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 create any scope for 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 slip into being a mere spectator rather than a performer.

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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 will end up making the Waqf Board a toothless entity.

The duties of the Mutawalli are mention in section 50 of the Act, the default of which will disqualify him or her. 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 amendment is good. The Bill seeks to reduce the punishment for illegal alienation of waqf property, from rigorous imprisonment to simple imprisonment under section 52A. The proposal to return the alienated waqf property to the waqf institution rather than the Waqf Board is appreciated. However the Waqf Board shall have power to take action against the delinquent Mutawallis.

Tribunal simplified

Section 83 of the Waqf Act prescribes the constitution of Waqf Tribunal. The Bill under clause 35 seeks to simplify the composition of Waqf Tribunal, which is appreciated. Section 84 of the Waqf Act 1995, prescribes that the Waqf Tribunal furnish copies of its orders to 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.

Non-Muslims included in Waqf bodies but barred from donation to Waqf institutions

Section 104 of the Waqf Act pertains to donations by non-Muslims in support of waqf institutions. But the Bill under clause 40 seeks to omit this section. It has been observed that many non-Muslims have faith in a number of dargahs and other Muslim shrines. If they want to donate to such waqfs, the proposed amendment does not permit it.

As per Islamic Law, when a non-Muslim can constitute a waqf and there is no bar for a non-Muslim to be a Mutawalli of the waqf institution, and when this Bill itself attempts to include non-Muslims to the Waqf Boards and Central Waqf Council, why should donation by a non-Muslim be barred? The existing section portrays syncretic culture and Indian ethos. Therefore, this proposal of amendment is in bad taste.

Conclusion

During the last several decades the Central and State governments have constituted a number of commissions and committees to inquire into the pathetic condition of waqf administration. There are several recommendations submitted by the Joint Parliamentary Committees and House Committees of the State Legislature 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. The Joint Parliamentary Committee headed by Rahman Khan recommended the digitisation of waqf records among other recommendations. But no action has been heard of during the last many years.

The waqf law in India is not bad, but many of the proposed amendments in this Bill will cause more harm than good to the cause of waqf. A pristine administration of the waqf can be ensured with the dedication and devotion of its administrators as well as astute 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).