The principle “Once a Waqf, always a Waqf” is a fundamental tenet of Islamic Waqf jurisprudence and a vital aspect of the Islamic faith. However, the current government appears intent on challenging this cornerstone by introducing legislation in Parliament that threatens to undermine the very essence of Waqf in India. The proposed Waqf (Amendment) Bill, 2024, which seeks to introduce 44 vital amendments to the Waqf Act of 1995, aims to drastically reshape the administration and regulation of Waqf properties.
According to the digital records of the Waqf Management System of India – an e-governance initiative under the Ministry of Minority Affairs – there are currently 8,72,324 registered immovable Waqf properties and 16,713 movable Waqf properties across 32 Waqf Boards in India. The Waqf Board, with an estimated property value of ₹1.2 lakh crore and covering approximately 9.4 lakh acres of land, is the third-largest landholder in the country, following the Indian Railways and the Defence Department.
The concept of Waqf has deep historical roots, dating back to the time of Prophet Muhammadﷺ. In India, the Waqf system has been in place since the pre-colonial British era, with the establishment of Waqf Boards in 1913 and the passing of the Mussalman Waqf Act in 1923, marking the first legislation on Waqf under British rule. After Independence, the Waqf Act of 1954 was enacted, and subsequent amendments were made in 1964 and 1995. And now this proposed overhaul by the government in 2024 raises serious concerns about the future of Waqf properties and the potential impact on the Muslim community.
Concept and Objective of Waqf
In Islamic jurisprudence, the term waqf, which literally means “detention,” refers to the permanent dedication of property for religious or charitable purposes. Once a property is designated as waqf, it is held in perpetuity, meaning it cannot be sold or transferred. Only the usufruct – the benefits derived from its use – can be utilized for the intended beneficiaries. The law of waqf is deeply rooted in Islamic faith and Muslim personal law, profoundly influencing the religious, socio-economic, and political life of the Muslim community.
The creation of a waqf is a purely voluntary act, embodying the spirit of selflessness where one donates property for the public good without coercion or expectation of personal gain. However, the proposed Waqf (Amendment) Bill, 2024, seems to contradict this fundamental principle. It appears to be designed to enable the appropriation of waqf properties by both state and non-state actors, rather than safeguarding them. This bill not only threatens the rights of the Muslim community but also stands to undermine the interests of the poor, for whom waqf properties often provide vital support.
Reflections on the Proposed Changes to the Waqf Act, 1995
The proposed amendments to the Waqf Act, 1995, have sparked widespread criticism and concern among religious organizations, community leaders, activists, opposition figures, and legal experts. Critics argue that these changes constitute a direct assault on the autonomy and authority of Waqf Boards and Waqf Tribunals. They fear that the amendments will lead to an increase in encroachments on Waqf properties, undermine the community’s ability to assert its rights over these properties, and further centralize power, thereby eroding the democratic foundations of Waqf administration. Such moves, they contend, not only escalate communal tensions but also threaten to undermine religious freedom and minority rights in India.
Inclusion of Non-Muslim Members in CWC, Waqf Boards, and CEO Roles
The administration of Waqf affairs is highly technical and deeply intertwined with Islamic principles. The governance of Waqf institutions should therefore rest in the hands of those who share the faith and possess a thorough understanding of its religious and legal intricacies. This principle is reflected in various Hindu, Jain, and Sikh endowment acts in India, which restrict membership to individuals of the respective faiths.
However, the proposed amendments to Sections 9 and 23 of the Waqf Act would introduce non-Muslim members into the Central Waqf Council (CWC) and State Waqf Boards (SWBs), and even allow a non-Muslim to serve as the Chief Executive Officer. This is seen as a violation of the principles of equality, autonomy, and religious freedom enshrined in Articles 14, 25, and 26 of the Indian Constitution.
Previously, the CWC included 14 members, with only one non-Muslim member – the Union Minister in-charge of Waqf, who serves as the ex-officio Chairman. The proposed changes would expand the CWC to 23 members, of which 7 could be non-Muslims. Critics argue that this shift not only disrupts the balance of representation but also threatens the integrity of Waqf administration by placing its governance in the hands of those who may not fully understand or respect its religious significance.
Government Overreach and Democratic Backsliding in Waqf Boards
The proposed Waqf (Amendment) Bill represents anextraordinary departure from the democratic principles that once underpinned the composition of Waqf Boards. Previously, at least one or two members were elected from electoral colleges comprising Muslim MPs, MLAs, State Bar Council members, and Mutawallis of Auqaf. However, under the new Bill, all members are to be government appointees, effectively eliminating any democratic input. This shift not only compromises the autonomy of the Waqf Boards but also jeopardizes the interests of Auqaf by concentrating power in the hands of the government.
The proposed omission of Section 20A of the Act is another troubling development. This section currently allows for the removal of the Board’s Chairperson through a vote of no confidence by elected members. The proposed Bill would transfer this power solely to the state government, further curtailing the democratic functioning of Waqf Boards. Additionally, the appointment of the Chief Executive Officer, who also serves as the ex-officio secretary of the Board, would now occur without any consultation with or input from the Waqf Board, as outlined in the changes to Section 23. This move further erodes the independence and self-governance of Waqf institutions.
Strict Limitation Rules and a Boon for Illegal Encroachers
One of the most alarming aspects of the proposed Bill is the planned omission of Section 107, which currently exempts Waqf properties from the Limitation Act, thus aiding in the recovery and protection of these properties from illegal occupants. Removing this exemption would severely undermine the rightful claims of Waqf Boards, making it far more difficult for them to pursue legal action against illegal encroachments.
If the Limitation Act is applied, numerous Waqf properties that have been under illegal occupation for extended periods may be barred from legal proceedings to recover possession. This change could open the door for illegal encroachers to solidify their hold on Waqf properties, further eroding the rights and assets of the Muslim community.
‘Government Encroachment’ on Waqf Properties might Legitimize
The proposed Waqf (Amendment) Bill introduces new provisions that would significantly alter the balance of power concerning Waqf properties. Under Section 40 of the current Act, the Waqf Board is recognized as the competent authority to determine the status of properties, a position supported by strong jurisprudence from the Supreme Court. However, the new Bill seeks to insert Sections 3A, 3B, and 3C, alongside amendments to Section 4, which would grant the government the authority to take over any property by declaring it as government property.
This move is particularly alarming given that the government is often accused of being one of the largest encroachers on Waqf properties. Empowering the government to unilaterally decide whether a property belongs to the Waqf or the government, both retroactively and prospectively, is a blatant injustice that seems to target the Muslim community. This shift is likely to influence the resolution of disputes between the Waqf Board and the government, tipping the scales in favor of state interests.
Moreover, the Bill proposes the removal of the Waqf Board’s suo moto power to investigate and issue orders regarding any property it believes to be Waqf property under Section 40. This power, which was crucial in addressing widespread encroachments on Waqf lands across India, has been a necessary tool for maintaining the rights and integrity of Waqf properties. Although such orders could be challenged and modified by the Waqf Tribunal, the proposed omission strips the Waqf Board of a vital mechanism for protecting its assets.
Faith as a Barrier in Creating Waqf
Waqf is traditionally understood as the voluntary and permanent dedication of movable or immovable property for pious, religious, or charitable purposes. The proposed Bill, however, seeks to impose new conditions on the creation of Waqf, requiring that the donor (Waqif) must be a practicing Muslim for at least five years. This is a stark departure from established jurisprudence laid down by the Supreme Court and represents an arbitrary restriction that could disenfranchise new converts to Islam and non-Muslims who wish to create Waqf.
The requirement that a Waqif must be a practicing Muslim for five years is both vague and problematic. It raises questions about who would have the authority to certify or declare someone as a practicing Muslim, introducing unnecessary complications into what has traditionally been a straightforward and inclusive process. These arbitrary and absurd restrictions appear to stem from a lack of consultation with the Muslim community and its religious scholars during the drafting of the Bill. The imposition of such conditions threatens to undermine the fundamental principles of Waqf and alienate those who wish to contribute to its legacy.
Abolishing ‘Waqf by Usage’ threatens future of many Religious and Charitable Institutions
The concept of ‘Waqf by Usage’ is a cornerstone of Islamic jurisprudence, firmly established in numerous Supreme Court rulings. The proposed amendments to the Waqf Act threaten to abolish this vital category of Waqf properties, which have been dedicated to religious, pious, and charitable purposes for extended periods. This move not only contravenes the Right to Religion but also represents an unwarranted deviation from established Islamic law. The potential consequences are dire: numerous mosques, madaris, graveyards, and other institutions situated on properties classified as Waqf by Usage could be at risk depending upon the applicability of this provision.
The omission of Section 3(r)(i) from the Waqf Act, 1995, further exacerbates these concerns by increasing the likelihood of disputes and conflicts over such properties. This change undermines the longstanding practice and legal recognition of Waqf by Usage, potentially destabilizing essential community assets.
Abolition of the Post of Survey Commissioner
The proposed Bill also seeks to eliminate the role of the Survey Commissioner, shifting the responsibility for surveying Waqf properties to the Collector or an official of rank not below of a Deputy Collector. This vital change represents an encroachment on the powers of the Waqf Board and compromises the integrity of the surveying process. Under Section 3C of the Bill, the Collector is granted the authority to inquire into, report on, and amend revenue records for Waqf properties, effectively placing the Board in a subordinate position.
Such a provision violates the principles of natural justice and the rule of law. The Collector, who may already be overwhelmed with other duties, is ill-suited to handle the detailed and specialized work previously managed by a dedicated Survey Commissioner, further complicates the management and protection of Waqf assets. The role of the Collector as an arbiter of government claims against Waqf properties is problematic; ideally, these disputes should be resolved by the Waqf Tribunal, which has the expertise and mandate to address such matters in a timely and fair manner.
Curtailment of Waqf Tribunal Powers
The proposed amendments to Section 6 of the Waqf Act significantly undermine the authority of the Waqf Tribunal. By removing the finality of its orders and extending the limitation period for suits from one year to two years, the Bill is likely to prolong disputes and introduce substantial delays in their resolution. Additionally, the omission of provisions that prevent suits before the Tribunal for uncovered Waqf properties listed in the second survey could exacerbate disputes, further complicating the legal landscape surrounding Waqf properties.
Mandatory Waqf Deeds for Registration
Traditionally, Waqf can be established through a deed or instrument, or even orally, and properties used for religious or charitable purposes over time may be deemed Waqf by usage. The proposed requirement under Section 36 for a Waqf to be formally documented through a deed encroaches on these traditional practices. This mandate undermines both the oral and usage-based methods of creating Waqf, which are integral to Islamic jurisprudence.
Moreover, the new stipulation that all Waqf properties must be registered within six months of the commencement of the Waqf Amendment Act 2024 imposes a rigid deadline. Failure to meet this deadline could bar aggrieved parties from pursuing legal action concerning Waqf properties. This arbitrary deadline and the stringent registration requirements risk depriving countless Waqf properties of their legal recognition, adversely affecting the rights of the Muslim community.
Reduction in Criminal Liability and Penalties
The proposed reduction in penalties under Section 52A for unlawful alienation, purchase, or possession of Waqf property is concerning. The Bill reduces the severity of imprisonment from rigorous terms to a maximum of two years and removes the cognizable and non-bailable nature of such offenses. This reduction in criminal liability suggests a troubling shift in priorities, potentially undermining the protection of Waqf properties and reflecting poorly on the government’s commitment to safeguarding these assets.
Removal of Mutawalli for Unlawful Association Membership
The Bill introduces a new ground for the removal of a Mutawalli if he is a member of any association declared unlawful under the Unlawful Activities (Prevention) Act, 1967. This provision raises serious concerns about natural justice and the principle of “innocent until proven guilty.” Mere membership in such an association could lead to the removal of a Mutawalli, regardless of whether the individual has been convicted of any offense or merely faces allegations. The lack of clarity on how membership will be proven and whether a formal conviction is required adds to the potential for misuse and unjust removal from office.
The proposed Waqf (Amendment) Bill, 2024, falls significantly short in addressing critical issues such as mismanagement, corruption, and encroachment on Waqf properties. Instead of providing a robust solution, the Bill seems designed to allow the government to consolidate control over Waqf administration while diminishing the authority of Waqf Boards and Tribunals. This approach raises serious constitutional concerns and poses a threat to fundamental rights, including equality and religious freedom. The lack of consultation with the Muslim community prior to introducing the Bill further suggests an agenda that risks displacing Waqf properties from their rightful custodians.
Rather than strengthening the legal framework to protect Waqf properties, the Bill could undermine existing protections. If the government is genuinely concerned about the administration of Waqf assets, any new legislation must prioritize the interests of Waqf beneficiaries. Unfortunately, the current provisions of the Waqf (Amendment) Bill, 2024, suggest the opposite, leading to concerns about its potential impact.
Historically, Waqf Boards and Tribunals have played a vital role in safeguarding Waqf properties and ensuring justice. Instead of weakening these institutions, efforts should focus on enhancing the effective implementation of existing legal framework.
Several reforms are urgently needed to address the current challenges. First, the digitization and comprehensive documentation of Waqf properties and related disputes are essential. A well-maintained digital database would ensure a detailed historical record and improve the management and resolution of conflicts. Second, decentralizing Waqf property management by establishing district-level Waqf Boards could help resolve administrative issues related to both listed and unlisted properties, enhancing oversight and reducing delays.
Additionally, increasing democratic representation within Waqf Boards is crucial to prevent the concentration of power. Strengthening democratic processes and imposing strict penalties for mismanagement and abuse of authority will ensure greater accountability. As it stands, the current Bill does not align with its stated objectives and fails to adequately protect the interests of the Muslim community. Given these shortcomings, the Bill should be withdrawn and reconsidered to reflect the true needs and rights of the community it aims to serve.
[The writer is Vice President, Jamaat-e-Islami Hind]