On 8th August, the Waqf (Amendment) Bill, which seeks to “effectively address” issues related to the powers of the State Waqf Boards, registration and survey of waqf properties and removal of encroachments, was introduced in Lok Sabha by Minority Affairs Minister Kiren Rijiju. The bill was strongly opposed by Congress, DMK, NCP, Trinamool Congress, AIMIM and others saying its provisions were against federalism and the constitutional provisions.
While some members demanded the withdrawal of the bill, many suggested that it should be sent to a standing committee. Rijijiu agreed to the suggestions for further scrutiny of the bill by a parliamentary committee. The bill was sent to a Joint Parliamentary Committee (JPC) which recently invited public suggestions.
The intent of the government is clear that is to regulate and bring some much-needed accountability through amendments. The rogue manner in which Waqf Boards across states have behaved in the past few years laying claims even on 1000s-year-old temples and predominantly Hindu-dominated areas must be stopped. However, mere amendments might just scratch the surface. There is no need to beat around the bush. There should be no hesitation in admitting that the Waqf system in India needs a thorough shake-up to save the rights and lands of communities other than Muslims.
A Brief History of Waqf in India
Waqf is an ancient system of endowments for religious causes of the Muslim community. In its current form, it has morphed into a vast empire with properties that could make real estate tycoons hide in a corner crying. Waqf Boards have their own set of rules that are exempted from any sort of scrutiny. So much so, that if land is arbitrarily declared Waqf property, the owner of the property would run pillar to post to find some legal way to take the ownership back. Even the government had to fight for years to get 123 properties in Delhi back from the Waqf Board that were “gifted” by the outgoing Congress-led UPA government in 2014.
Waqf is considered to be one of the significant branches of Islamic jurisprudence. However, the term “Waqf” has no mention in the Holy Book. The concepts seen are connotative in some of the verses. The foundational emergence of the idea can be found in the words and deeds of the Prophet. When Omer sought the advice of the Prophet for the pious use of a piece of land called Sammagh in Khaibar, the Prophet said: “Tie up the property and devote the usufruct to human beings and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred and the poor in the way of God.” In short, the Prophet dedicated a piece of land that he acquired in the canton of Khaibar for the use of travellers. Similarly, Abu Baker created a waqf in favour of his children.
The concept of Waqf was introduced in India with the advent of Islamic rule. During that period, waqf management was very theoretically centralized in nature. The idea of waqf in India dates back to the Delhi Sultanate when Sultan Muizuddin Sam Ghaor dedicated two villages in favour of the Jama Masjid of Multan and handed its administration to Shaikhul Islam. As Islamic rule flourished, the number of waqf properties increased.
In pre-British India, waqf was also closely linked to conversion and religious as well as cultural appropriation. In his book ‘The Preaching of Islam: A History of the Propagation of the Muslim Faith’, Thomas Arnold portrayed ‘Sufis’ as Islamic ‘missionaries’ among non-Muslims. Historian Muzaffar Alam in his book ‘The Languages of Political Islam: India 1200-1800’ also mentioned that Sufis used to convert Hindus to Islam. Richard Eaton in his work, ‘Approaches to the Study of Conversion to Islam in India’ called this process ‘accretion and reform’, whereby the Sufi saints would appropriate Hindu/local customs and nominally convert the population to Islam.
During the initial days, British India refrained from interfering with the Hindu and Muslim endowments. The first regulation that was Bengal Code Regulation XIX of 1810 was aimed to manage the rents and produce for the upkeep of mosques, temples and public buildings. In the same way, Madras Code Regulation VII 1817 was focused on the same for the Madras Presidency. By 1839, Christian missionaries’ objections led the British to reduce their control leading to mismanagement and embezzlement of temple and mosque funds. The then-government enacted the Religious Endowments Act of 1863 relieving the government of direct control and introducing management by local committees with court intervention when needed.
The Charitable Endowments Act of 1890 further established treasurers for charitable properties. In 1920, the Charitable and Religious Trusts Act allowed any interested person to seek judicial oversight of trusts, providing more stringent control.
The Mussalman Wakf Act of 1923 mandated proper accounting, but mismanagement persisted. Further, amendments like the Bengal Waqf Act (1934) and the Bihar Waqf Act were introduced. These legislations proved there was a need for dedicated laws to manage Muslim endowments which was in contrast with previous secular laws.
After independence, the Mussalman Waqf Act, of 1923 was applicable for managing Waqf properties. However, in 1954, the then-Congress Government introduced the Waqf Act, 1954, which centralised the administration of these properties. It also established Waqf Boards with significant powers. In 1984, the Waqf Inquiry Committee submitted a report leading to the Waqf (Amendment) Act which aimed to restructure the Waqf administration and address financial and operational loopholes. Later, The Waqf Act 1995 was enacted which consolidated and amended previous laws. It retained major provisions from the 1984 Amendment Act.
Why Waqf Act needs amendments?
The Waqf system involves property endowments for religious or charitable purposes, governed by Islamic law. However, the Waqf Act mandates taxpayer-funded surveys of Waqf properties every ten years, despite objections from the majority community (Section 4). The Act’s draconian provision (Section 40) allows the Waqf board to take over any property without notifying the current occupants, leaving them with the sole option of appealing to a Sharia-governed tribunal (Section 83), which non-Muslims find objectionable. Civil courts have no jurisdiction over such disputes (Section 85), and the Waqf Act contravenes the Limitation Act of 1963 by allowing perpetual claims on properties. The Act grants the Waqf board extensive powers, resulting in Waqf properties covering about 6 lakh acres nationwide, making it the third-largest landowner, raising concerns about the covert takeover of national resources under the protection of existing laws. This is just tip of the iceberg. Waqf, in its current form, has unlimited power which no autonomous body should have in a democratic country.
Cases where Waqf claimed land ownership
In Bihar, the Sunni Waqf Board issued a notice in the Hindu-majority Govindpur village of Fatuha near Patna claiming ownership of around 7 Hindu houses. The Sunni Waqf Board has been frequently issuing notices to residents of Govindpur village who have built houses and have been living there for many years. There are around 95% Hindu families living in this village. The Sunni The Sunni Waqf Board notice written in Urdu stated that this land belonged to the Waqf Board and that the residents should evacuate it within 30 30-day time period. The Waqf Board also erected a board regarding the same, which is still standing The afflicted continued to visit the officials but received no relief. When the residents approached the Patna High Court, the Waqf Board was unable to produce any proof for claiming the ownership of 7 Hindu houses and the Patna High Court thus granted relief to the Hindu residents.
In Kolhapur, the Mohamedan Education Society of Kolhapur and the assets it owned, worth Rs. 3,500 crores, were taken over by the State Waqf Board. On June 23, the waqf board sent directives to the trustee of the organization, stating that after carefully examining the paperwork, it had determined that the institution was a waqf institution and that its assets belonged to the waqf. However, the Mohamedan Education Society’s officeholders assert that the organization is not governed by the waqf board.
Even Allahabad High Court has to fight in the Supreme Court for its own land as someone built a mosque on it and the Sunni Waqf Board claimed ownership. On 13th March 2023, the Supreme Court of India dismissed the special leave petition submitted by the Waqf Masjid High Court and the UP Sunni Central Waqf Board against the High Court’s order to remove or demolish the mosque in its premises. The bench added if the construction is not removed within the 3-month period, the authorities will have permission to remove or demolish it. The court also permitted the petitioners to make a representation to the UP govt for an alternate land nearby which the state can consider if the law permits and if the lands are not required for any public purpose at present or in the future.
In August 2024, the Madhya Pradesh High Court overturned a decision by the MP Waqf Board that claimed the Burhanpur Fort as Waqf ownership. The Waqf Board claimed that the Tomb of Shah Shuja, the Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace located in the Fort of Burhanpur were Waqf property.
In 2013, the Waqf Board requested the Archaeological Survey of India (ASI) to evacuate the sites, claiming ownership of them. However, the ASI filed a writ petition with the high court, contending that the property, located in Emagird village, Burhanpur, and spanning around 4.448 hectares, was already protected under the Ancient Monuments Preservation Act of 1904.
The ASI stated that these sites, which had been under their protection for decades, could not be reclassified as Waqf property without losing their status as protected monuments.
In April 2024, The Waqf Board’s controversial decision to declare the head office of the Surat Municipal Corporation (SMC), known as ‘Muglisara’ (Mughal Sarai), as waqf property, was finally quashed. In November 2021, the Waqf Board partially approved an application and declared the SMC Headquarters as Waqf property. The municipality then challenged the decision in the Waqf Tribunal in a legal battle. The tribunal finally passed an order on 3rd April 2024, dismissing the waqf board’s claim. The tribunal termed the Waqf Board’s order to declare SMC a Waqf property as illegal, against the established judicial principle of law, erroneous and arbitrary.
The Government’s proposal and call for change
The government of India deserves appreciation that it recognised that Waqf Boards need change. The proposed amendments suggest digitisation of assets, conducting annual audits by CAG and making Waqf properties publicly transparent under RTI. An advisory board with non-Muslim representation has also been proposed in the amendments. But we believe the scrutiny has to be far more. After all, it owns the third most pockets of land in the country. The Joint Parliamentary Committee has now sought suggestions from stakeholders including the public, NGOs, experts, and institutions. It is a must for every concerned citizen to tell JPC what changes they want in the Waqf Act.
Following are the changes already proposed in the Waqf Amendment Bill:
Formation of Waqf: The Act permits waqf formation through (i) declaration, (ii) recognition based on long-term use (waqf by user), or (iii) endowment when succession ends (waqf-alal-aulad). The Bill specifies that only a person practising Islam for at least five years can declare a waqf and must own the property. It removes waqf by a user and states that waqf-alal-aulad must not deny inheritance rights to any heirs, including women.
Government property as Waqf: The Bill stipulates that any government property identified as waqf will no longer be considered as such. In cases of uncertainty, the local Collector will determine ownership and report to the state government. If deemed government property, revenue records will be updated accordingly.
Determination of Waqf property: While the current Act authorizes the Waqf Board to decide if a property is a waqf, the Bill removes this provision. The absolute power will be in the hands of the District Collector who will decide if the property is Waqf or the Government’s land.
Survey of Waqf: The Act assigns the survey of Waqf to a Survey Commissioner and additional commissioners. The Bill shifts this responsibility to Collectors, with pending surveys to follow state revenue laws.
Central Waqf Council: The Act has a provision for a Central Wakf Council that advises the governments as well as the Wakf Boards. It is headed by the ex-officio chairperson, Union Minister in charge. It also provides for at least two members of the council to be women, while all members have to be Muslims. In this Bill, two non-Muslim members are included apart from MPs, former judges or eminent persons who can also be non-Muslims. The candidates of the Muslim organizations, scholars in Islamic Law and Chairpersons of the Waqf Board have to be Muslims, two being women.
Waqf boards: The Act allows the election of up to two members each from Muslim MPs, MLAs, MLCs, and Bar Council members to the Board. The Bill empowers state governments to nominate one person from each group, who need not be Muslim and requires two non-Muslim members. The Board must include at least one member each from Shias, Sunnis, and Backward classes of Muslims, and representatives from Bohra and Agakhani communities if they have waqf in the state. The Act requires at least two women members; the Bill specifies that two Muslim members must be women.
Composition of tribunals: The Act mandates the formation of Tribunals to resolve waqf disputes, chaired by a judge of a rank equivalent to Class-1, District, Sessions, or Civil Judge, with other members including a state officer of Additional District Magistrate rank and a person versed in Muslim law. The Bill removes the latter role, instead including (i) a current or former District Court judge as chairman, and (ii) a current or former officer of the rank of joint secretary to the state government.
Appeals on tribunal orders: Currently, Tribunal decisions are final, with limited appeal options in High Courts. The Bill removes the finality provision, allowing appeals to the High Court within 90 days.
Central government powers: The Bill gives the central government authority to regulate waqf registration, accounts publication, and proceedings of Waqf Boards. It also allows the central government to audit waqf accounts through the CAG or a designated officer, expanding upon the Act’s provision for state government audits.
Separate Waqf boards for Bohra and Agakhani: The Act allows separate Waqf Boards for Sunni and Shia sects if Shia waqf constitutes more than 15% of waqf properties or income in a state. The Bill extends this to include separate boards for Aghakhani and Bohra sects.
9 Suggestions for the Joint Parliamentary Committee (JPC)
Below are some suggestions for the Joint Parliamentary Committee (JPC) that could make a real difference.
1. Diversify the advisory board
Muslims make up only 14 per cent of the Indian population. Waqf boards, which own the third largest pockets of land in the country, remain only under the supervision of the Muslims. The government should consider bringing at least 40% participation of non-Muslims on the advisory boards of Waqf across states from different communities including Hindus, Sikhs, Jains, Christians and more. Furthermore, 60% Muslim representation should include representatives from all Muslim sects such as Sunni, Shia, Barelvi, Deobandi and more. A real representation will go a long way.
2. Report to government ministries
One of the most important amendments needed in the Waqf Act is the accountability of the advisory boards. They should report directly to a designated Ministry. A little oversight will not hurt anyone from any community, except those who perhaps have been enjoying the status quo for a long.
3. Judicial oversight
Waqf tribunals should be not autonomous bodies but should come under the supervision of High Courts and the Supreme Court. There is no need for a parallel justice system especially when non-Muslim communities are affected by it.
4. Equitable tax and subsidy treatment
The subsidies, taxes, debts, and rebates applicable to Waqf should be on par with those available to other religious and charitable organisations. There should be no special treatment.
5. Digitize and disclose
Digitisation of the waqf properties should be done as the top priority and the data should be available to the public. Any new addition to Waqf properties should be recorded and added to the data within 24 hours by all departments associated with it. Transparency should be at the same level as non-Waqf land asset records made available by the government.
6. Time-limited legal disputes
One of the biggest issues of this system is the pending legal matters. Any legal matter must be resolved within a specified time not more than three months. There is no need to drag the cases related to Waqf properties any longer than three months.
7. Rigorous annual audits
All Waqf Boards must undergo annual audits by the CAG or a separate designated authority. If regular businesses have to go through an audit, so should Waqf. Everyone in this country is equally answerable for their actions.
8. Scrutinise foreign funding
Foreign funding and funding from NGOs or organisations with vested interests should be banned with immediate effect. No one should be able to donate to the Waqf board without the government’s permission.
9. No more free-for-all land grabs
The ability to claim public, cultural, private and government properties as Waqf properties has to be snapped with immediate effect. If any property has to be declared as Waqf, it should be done through a long legal process that puts every step under strict scrutiny by different departments so that there is no chance of any possible land grab. Writing “Waqf” on any property should no longer be similar to writing a blank cheque.
A final note
The main aim of the amendments should be to dilute the powers of the Waqf Board so that they don’t run as per their whims and abide by the law of the land. The legal provisions should be formed in a way that scrutiny of Waqf Boards’ decisions becomes a must and everything goes through a proper judicial process.
