On 8th August, Union Minister Kiren Rijiju proposed sending the Waqf (Amendment) Bill 2024 to the Joint Parliamentary Committee after tabling the bill in the Lok Sabha. In a statement, he said, “Constitute a Joint Parliamentary Committee and refer the bill to it for wider scrutiny. Discuss the bill extensively, call more stakeholders, and listen to their opinions. Pass this [Bill] to the committee, and in future we will listen to their suggestion with open heart…” As the Waqf Act, 1995 is being amended by the government along with repealing the Mussalman Wakf Act, here is all you need to know about Waqf.
Historical Background of Waqf
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.
According to the Judicial Committee of the Privy Council also in Vidya Varuthi Thirtha Swamigal Vs. Balusamy Iyer2 (AIR 1922 PC123), waqf means “tying up of property in the ownership of God, the Almighty and the devotion of the profits for the benefit of human beings”.
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.
During that period, waqf institutions played a vital role in the development of Islamic scholarship and education. 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.
Waqf during the British period
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. These regulations allowed the British government to oversee religious trusts and ensure their proper use through strict control.
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.
In 1894, a judgment came in Abdul Fata Mahomed Ishak v. Russomoy Dhur case which became a landmark decision in the matter. It ruled that primarily benefiting the family was invalid unless those were dedicated to charity. Dissatisfaction with the judgment led to the Mussalman Wakf Validating Act of 1913 which reversed it.
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.
Post-Independence and Post Partition of the country
After 1947, 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. However, it raised suspicions about the government’s intentions, particularly regarding appeasement of one community. The act led to the repealing of several pre-independence laws and changed the administration of Waqf properties extensively.
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. However, the Muslim community strongly objected to it, particularly to the powers granted to the Waqf Commissioner and the Act could not be fully enforced.
Later, The Waqf Act 1995 was enacted which consolidated and amended previous laws. It retained major provisions from the 1984 Amendment Act. However, the Muslim community was still against it which led to the formation of a Joint Parliamentary Committee (JPC) to recommend improvements. Based on the JPC’s recommendations, the Waqf (Amendment) Act, 2013 was enacted giving Waqf more powers.
Significant changes in Waqf Legislation during 1954, 1995 and 2013
Definition and Scope of Waqf
Over the years, the definition and scope of waqf have been changed. Initially, the 1954 Waqf Act expanded the concept to include Waqf by User and waqf-alal-aulad, allowing properties to be considered waqf if they were used for religious or charitable purposes or dedicated within a family context, even without formal dedication. However, the 1995 Act enlarged the definition which ensured that the properties remained classified as waqf even if their usage ceased.
However, it has to be noted that it would remain classified only if greater permanence to waqf properties was there. A major shift occurred in 2013 when the amendment allowed any person, not just Muslims, to permanently dedicate property as waqf. This broadened the potential pool of waqf properties, opening it up to contributions from non-Muslims.
Introduction and Enlargement of Waqf by User
The concept of Waqf by User was first introduced in the 1954 Act. It allowed properties to be considered waqf based on long-term usage for religious or charitable purposes without formal dedication. It was particularly relevant for public properties like graveyards and mosques. In 1995, the concept was expanded leading to the possibility that waqf property would remain waqf even if its usage stopped. The 2013 amendments reinforced the waqf board’s authority to determine and enforce this status, solidifying control over such properties.
Judicial Proceedings and Establishment of Waqf Tribunals
Initially, in the 1954 Act, civil courts had the power to decide on the dispute related to waqf properties. In the 1995 Act, Waqf Tribunals were introduced transferring the power to them. In 2012, tribunals’ powers were expanded and included tenant eviction disputes and other related issues, consolidating the tribunals’ role in managing waqf properties.
Cost of Survey
In the 1954 Act, the cost of surveying a property was the responsibility of the mutawalli and it was funded by the income of the waqf property. In 2013, the cost was shifted to the financial burden of the state.
Composition of the Waqf Board
In 1954, the board membership to Muslims was not limited and members from various backgrounds, including state legislators, Parliament members, and experts in Muslim law, administration, finance, or law were allowed. However, in the 1995 Act and after the 2012 amendments, the board members were mandatory to be from the Muslim community.
Enlargement of Powers of the Board
The 1954 Act granted the board extensive powers such as managing waqf income, appointing and removing mutawallis, and determining the nature of waqfs. The 1995 Act further enhanced these powers and allowed the board to claim properties of trusts or societies registered under other laws if deemed waqf. The 2013 amendments reinforced these powers, making the board nearly invincible in matters of waqf property decisions.
Designation of Public Servant
In the 1954 Act only commissioners, auditors, and board officers were deemed public servants. The 1995 Act expanded it to every mutawalli, managing committee member, and others holding office in a waqf. However, trustees or managers were not granted these powers.
Any Person Interested Therein vs. Any Person Aggrieved
The 1954 Act allowed “any person interested therein” to challenge waqf property disputes, primarily targeting Muslims. The 1995 Act retained the phrase but directed disputes to specialised tribunals. The 2013 amendments replaced the phrase barring non-Muslims from filing suits beyond a one-year limitation.
Appointment of the Chief Executive Officer
The 1995 Act introduced the position of a full-time Chief Executive Officer (CEO) for the Waqf Board. The CEO must be a Muslim. He is responsible for investigating waqf properties, overseeing accounts, and maintaining control and supervision of waqfs.
Alienation of Waqf Property
Under the 1995 Act, there were provisions regarding the alienation of waqf property. It required board approval for any sale, gift, exchange, or mortgage of waqf property. The 2013 amendments made such alienations void ab initio, except under special circumstances. The powers ensured once a property is declared waqf, it remains waqf.
Enlargement of the Scope of the Act to Non-Muslims
An amendment was introduced to the 1954 Act in 1964 to extend the scope of waqf legislation deeming deeming properties donated by non-Muslims for waqf purposes as waqf properties. The 1995 Act incorporated a similar provision, maintaining that properties donated by non-Muslims for certain waqf purposes fall under waqf legislation.
Power to Remove Encroachments
1954 Act did not address the issue of encroachments. In the 1995 Act, discretionary power was granted to the CEO to remove encroachments. The powers were expanded in 2013 with a new definition of “encroacher” and reinforced mechanisms for enforcement.
Special Provision for Evacuee Waqf Properties
The 1995 Act included provisions for evacuee waqf properties, which were not covered in the 1954 Act. These provisions ensured that properties classified as waqf before becoming evacuee properties remained under waqf management, extending the scope of the waqf legislation to include these specific properties.
Act to Have an Over-riding Effect
The 2013 Waqf (Amendment) Act included a provision that the waqf legislation would have an overriding effect over other laws. It ensured the primacy of the Waqf Act in matters concerning waqf properties.
Bar on Applicability of Limitation Act
The 1995 Act barred the applicability of the Limitation Act, of 1963, to suits for possession of immovable waqf property. It ensured that such suits could be pursued without the constraints of limitation periods.
Restoration of Waqf Properties in Occupation of Government Agencies
The 2013 amendments introduced a new provision requiring government agencies to return waqf properties to the Waqf Board or Mutawalli within six months of a tribunal order.
Why the proposed suggestions are not violative of Articles 25 and 26?
The proposed suggestions in the Act are not in violation of 25 and 26 of the Indian Constitution because waqf does not fall under the purview of these articles. Article 26 pertains to religious denominations that are defined as groups with a common faith, organisation and distinctive name. The Supreme Court’s ruling in Bramchari v. State of W.B. established that a religious denomination must have a common faith, organisation and name. The Waqf Board does not meet these criteria, as it is a statutory body, not a representative body of Muslims or a religious denomination. Therefore, changes to waqf regulations do not infringe on the fundamental rights protected by Articles 25 and 26.
International Perspective on Waqf
The Waqf Act of 1995 in India grants extensive powers to the Waqf Board, including broad definitions and suo moto survey authority. This is distinct from other nations’ approaches to waqf administration. In many Muslim dominating countries different historical and modern practices influence their legal frameworks and administrative structures.
For example, Turkey centralises waqf management under the General Directorate of Foundations, modernising and secularising its administration post-Ottoman Empire. Kuwait and Syria also adopt centralized systems through their respective ministries, focusing on transparency and efficiency.
Indonesia employs a centralized system under the Indonesia Waqf Board, emphasising digitisation and governance improvements. Lebanon and Saudi Arabia follow centralised approaches with their respective ministries and authorities, ensuring proper waqf utilization.
Singapore’s centralised waqf administration under the Majlis Ugama Islam Singapura ensures streamlined management and compliance with Islamic principles. The UAE has a federal, centralised system with a focus on modernisation and integration into national development.
Iraq’s waqf administration is divided along sectarian lines, with separate offices for Sunni and Shiite endowments, contrasting with India’s non-sectarian but decentralized system.
Oman recently centralised waqf administration under the Ministry of Endowments and Religious Affairs, focusing on professionalisation and investment.
In contrast, India’s decentralised system with state-specific boards leads to variations in management and effectiveness.
The changes proposed in Waqf (Amendment) Bill 2024
The Waqf (Amendment) Bill 2024, which was introduced in Lok Sabha today, proposes several major changes to the Waqf Act. One of the most significant is removal of contributions by non-Muslims. It changes the definition of ‘Waqf’, which states that it is the dedication of any movable or immovable property by a person practising Islam for at least five years.
It adds that the creation of waqf-alal-aulad (An endowment for the family of the donor) shall not result in the denial of inheritance rights of heirs, including women heirs of the donor. The amendment further adds maintenance of widows, divorced women and orphan to the use of proceeds of such dedicated property.
The amendment introduces the position of Collector who would exercise powers some of which were once vested with the Waqf Board. The new act mandates all registered waqfs to file details of the waqf and properties dedicated to the waqf.
The amendment adds a provision to stop the misappropriation of govt land by claiming to be waqf property. It states that any government property ‘identified’ or ‘declared’ as waqf, before or after the Amendment, shall not be deemed to be waqf property. In case of dispute, the collector will conduct an enquiry.
As per current law, the decision of the Tribunal in case of any dispute regarding waqf property is final, which can’t be challenged. The amendment changes this, saying that a suit can be constituted within a period of two years from the publication of the list of waqf properties.
Section 40 the waqf act, which allows the board to collect information regarding any property which it has reason to believe to be waqf property, has been abolished.
It further states that two non-Muslilm members will be appointed to the Waqf Board, apart from two women members.
Creation of waqf without execution of a waqf deed has been stopped, and the Collector will conduct an enquiry into the genuineness of the application. If it is found to be disputed or govt property, registration wont be done.
References
- S.A. Kader, The Law of Wakfs, An Analytical and Critical Study, 5 (Eastern Law House, 1999).
- AIR 1922 PC123.
- “Waqf boards are India’s big urban landlords. But whose interest are they serving?” The Print. Link.
- “Waqf in India: Unraveling its Rich History and Contemporary Landscape,” Clarion India. Link.
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- S.A. Kader, The Law of Wakfs, An Analytical and Critical Study, 6 (Eastern Law House, 1999).
- Mulla, Principles of Mahomedan Law, 761 (LexisNexis, 23rd edition, 2021).
- Mulla, Principles of Mahomedan Law, 729 (LexisNexis, 23rd edition, 2021).
- Mulla, Principles of Mahomedan Law, 625 (LexisNexis, 23rd edition, 2021).
- Mulla, Principles of Mahomedan Law, 318 (LexisNexis, 23rd edition, 2021).
- S.A. Kader, The Law of Wakfs, An Analytical and Critical Study, 72 (Eastern Law House, 1999).
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- Magda Ismail Abdel Mohsin, Hisham Dafterdar, et al., Financing the Development of Old Waqf Properties (Palgrave Macmillan, 1st Edition, 2016).
- Qurroh Ayuniyyah, Abrista Devi, et al., Revitalization of Waqf for Socio-Economic Development (Springer Nature Switzerland, 1st Edition, 2020).
- James R. Fichter, British and French Colonialism in Africa, Asia, and the Middle East (Springer International Publication, 1st Edition, 2019).
- Toru Miura, Strategy for Religious Endowment: A Comparative Study of the Waqf (Endowment Studies, November 2023).
- Anwar Aziz, A Comparative Study of Waqf Institutions Governance in India and Malaysia.
- Mohsin, M.I.A., et al., Financing the Development of Old Waqf Properties (Palgrave Macmillan, New York, 2016).
- Aimu Fadzirul Kamarubahrin, “Critical Review on Waqf Experiences: Lessons from Muslim and Non-Muslim Countries,” 11 Iqtishadia: Journal of Islamic Economic and Business (2018).
- Aimu Fadzirul Kamarubahrin, “Critical Review on Waqf Experiences: Lessons from Muslim and Non-Muslim Countries,” 11 Iqtishadia: Journal of Islamic Economic and Business (2018).
- “New Omani Waqf Establishment Formed,” Decree. Link.
