On August 8, two bills, the Waqf (Amendment) Bill, 2024, and the Mussalman Wakf (Repeal) Bill, 2024, were introduced in the Lok Sabha to streamline the Waqf Board's work and ensure the efficient management of Waqf properties.

The objective of the Waqf (Amendment) Bill, 2024, is to amend the Waqf Act, 1995, to redress the issues and challenges in regulating and managing Waqf properties. The Amendment Bill seeks to improve the administration and management of waqf properties in India. It aims to overcome the shortcomings of the previous act and enhance the efficiency of Waqf boards by introducing changes such as renaming the Act, updating the definitions of waqf, improving the registration process, and increasing the role of technology in managing waqf records.

The primary objective of the Mussalman Wakf (Repeal) Bill, 2024 is to repeal the Mussalman Wakf Act, 1923, a colonial-era legislation that has become outdated and inadequate for managing waqf properties in modern India. The repeal aims to ensure uniformity, transparency, and accountability in the administration and management of waqf properties under the Waqf Act, 1995, thus eliminating inconsistencies and ambiguities caused by the continued existence of this redundant law.

The Waqf (Amendment) Bill, 2024 has been now referred to the Joint Committee of Parliament.

Before anything, we should understand the Waqf's history, laws, regulations and management.

Waqf refers to properties dedicated exclusively for religious or charitable purposes under Islamic law, and any other use or sale of the property is prohibited. Waqf means that the ownership of the property is now taken away from the person making Waqf and transferred and detained by Allah. ‘Waqif’ is a person who creates a waqf for the beneficiary. As Waqf properties are bestowed upon Allah, in the absence of a physically tangible entity, a ‘mutawalli’ is appointed by the waqif, or by a competent authority, to manage or administer a Waqf. Once designated as waqf, the ownership is transferred from the person making the waqf (waqif) to Allah, making it irrevocable.

In India, the history of Waqf can be traced back to the early days of 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 the Delhi Sultanate and later Islamic dynasties flourished in India, the number of Waqf properties kept increasing in India.

There was a case made for the abolition of Waqfs in India in the late 19th century when a dispute over a Waqf property ended up in the Privy Council of London during the days of the British Raj. The four British judges who heard the case described the Waqf as “a perpetuity of the worst and the most pernicious kind” and declared Waqf to be invalid. However, the decision by the four judges was not accepted in India, and the Mussalman Waqf Validating Act of 1913 saved the institution of Waqf in India. Since then, no attempt has been made to curb Waqfs.

The Waqf Act, 1954 - Waqf has only been strengthened post-independence. The Waqf Act of 1954 provided a pathway toward the centralisation of Waqfs. Central Waqf Council of India, a statutory body was established in 1964 by the Government of India under the Waqf Act of 1954. This central body oversees the work under various state Waqf boards which were established under provisions of Section 9(1) of the Waqf Act, 1954.

The Waqf Act, 1995 - The Waqf Act was made even more favourable to Muslims in 1995, which made it an overriding law. The Waqf Act, 1995 was enacted to govern the administration of Waqf Properties (Religious Endowments) in India. It provides for the power and functions of the Waqf Council, the State Waqf Boards, and the Chief Executive Officer, and also the duties of Mutawalli. This Act also describes the power and restrictions of a Waqf Tribunal that acts instead of a civil court under its jurisdiction. The Waqf Tribunals are deemed to be a civil court and required to exercise all the powers and functions exercised by a civil court under the Code of Civil Procedure, 1908. The decision of a Tribunal shall be final and binding on the parties. No suit or legal proceedings shall lie under any civil court. Thus, making the Waqf Tribunal decisions above any civil court.

Some provisions of the Act were amended in the year 2013 to make waqf management more efficient and transparent. However, during the implementation of the Act, it was felt that the Act did not prove effective in improving the administration of Waqf.

To achieve a more equitable arrangement and treatment of bodies such as waqf and other recognized religious entities established under similar intent, the aforesaid Waqf Act, 1995 as amended was tabled in Rajya Sabha on December 8, 2023.

Since the ownership of the property is transferred to Allah from the waqif in the case of Waqf, and property cannot be taken back from Allah, once a property becomes Waqf, it will always stay Waqf, making it irrevocable. Once a property is declared waqf, it remains so forever. Examples include the Bengaluru Eidgah ground, claimed as waqf property since the 1850s. Similarly, the Surat Municipal Corporation building was claimed due to historical use as sarai during Hajj in the Mughal era.

Islamic Countries such as Turkey, Libya, Egypt, Sudan, Lebanon, Syria, Jordan, Tunisia, and Iraq do not have Waqfs. However, in India, not only are Waqf Boards the largest urban landowners, but they also have an Act protecting them legally.

Wakf Boards currently control 8.7 lakh properties spanning 9.4 lakh acres across India with an estimated value of 1.2 lakh crores. India has the largest waqf holding in the World. Further, the Waqf Board is the largest landowner in India after the Armed Forces and the Indian Railways. There are 356,051 Waqf Estates registered under Waqf Board and 872,328 immovable properties are registered under Waqf Board. Also, there are 16,713 movable properties registered under the Waqf Board. Waqf Board have 3,30,000 digitised records so far.

The Major issues highlighted by the stakeholders are limited diversity in the constitution of the Waqf Board and Central Waqf Council, misuse of power by Mutawallis, non-maintenance of proper accounts of properties by Mutawallis, lack of effective coordination with local revenue authorities, issues of removal of encroachments, registration and declaration of title of WAQF properties, sweeping power to Waqf Boards for claiming properties resulting in disputes and litigation, non-applicability of Limitation Act resulting in creating disharmony among the communities, Low and negligible income from Waqf properties etc. The issues concerned with Waqf Board are as follows:

The principle of "once a waqf, always a waqf" has led to various disputes and claims. Some of these, like the claim on two islands in Bet Dwarka, have been deemed perplexing by courts.

The Waqf Act, 1995, and its 2013 amendment have been criticized for inefficacy, leading to issues like encroachment, mismanagement, ownership disputes, and delays in registration and surveys. Several issues have also been communicated to the Ministry regarding the problem of ownership title and possession of Waqf Properties; complaints and grievances of registration, functioning of the Tribunal and related large-scale litigations etc.

There is no judicial oversight on tribunal decisions, further complicating waqf management. Without the possibility of appealing to a higher judicial body, decisions made by the tribunal may undermine transparency, and accountability in the management of waqf properties.

The work of the survey of Waqf Properties by the Survey Commissioner was found unsatisfactory. Even a survey of Waqf Properties is still to be started in the States of Gujarat and Uttrakhand. In Uttar Pradesh, the survey was ordered in 2014 and it is yet to be started. The major issue of non-completing surveys is the non-expertise of the Survey Commissioners in survey work. Further, there are issues of coordinating survey reports with the Revenue Department to carry out work of registration of Waqf Properties smoothly.

It was observed that the State Waqf Boards have also misused some of the provisions of the Act which created disharmony and discontent among the communities. Section 40 of the Waqf Act was widely misused to acquire and declare a property as waqf property. This has not only generated an enormous number of litigations but also disharmony among the Communities.

Waqf Act is a special Act for religious properties of only one religion of the country when no such law exists for any other religion. A PIL has been currently filed in the Delhi High Court asking this very question. Delhi HC has issued notice to the central government on this plea regarding the constitutional validity of Waqf.

The Ministry has received a large number of grievances and representations from Muslims and non-Muslims on issues like wilful encroachment of waqf land and mismanagement of Waqf Properties. The Ministry has analyzed the nature and quantum of grievances received and found that 148 complaints received from April 2023 are pertaining mostly to encroachments, illegal sales of waqf land, delays in Surveys and registration and complaints against Waqf Boards and Mutawallis. The Ministry has also analysed the complaints received on the Centralized Public Grievance Redress and Monitoring System from April 2022 to March 2023 and found that out of 566 complaints, 194 complaints related to encroachment and transfer of waqf land illegally and 93 complaints were against the Officials of Waqf Board and Mutawallis.

Besides that, the Parliamentarians across the party line raised the issues of delay in the registration of Waqf Properties, fetching less rent than the market value by the Waqf Board, rampant encroachment on waqf land, inheritance rights of the widows, non-completion of a survey by the Survey Commissioner; slow progress of digitization of Waqf Property records etc.

The Ministry has analysed the functioning of Tribunals and found that 40,951 cases are lying pending in Tribunals out of which 9942 cases were filed by the Muslim community against the Institutions managing waqf. Moreover, there is an inordinate delay in the disposal of cases and no provision for judicial oversight on tribunal decisions.

The hardship caused to common people due to the opacity and overarching power of the Waqf Board can be seen from the many cases. According to one of such cases, a farmer Rajagopal from Tamil Nadu, could not sell his agricultural land to repay a loan because the Waqf Board claimed his entire village, Thiruchenthurai, as its property. This requirement for a no-objection certificate caused financial and emotional distress. The village was historically donated as waqf by Nawab Anwardeen Khan in 1956. To prevent illegal sales or encroachments, the Waqf Board requested the registration department to assign a 'zero value' to Waqf properties, a request currently stayed by the Ministry of Minority Affairs to allow property transactions. The situation has also spurred political and communal tensions.

In the case of Bengaluru Eidgah ground, even though there was no title transfer to any Muslim organisation as per the government, Waqf’s claims that it was a Waqf property from the 1850s means that it is now forever a Waqf property.

Recently, the Gujarat Waqf Board had staked claim to the Surat Municipal Corporation building which is now the property of the Waqf because the documents were not updated. As per Waqf, back during the Mughal era, the Surat Municipal Corporation building was a Sarai and used during the Hajj travels. The property then belonged to the British Empire during British rule. However, when India got independence in 1947, the properties were then shifted to the government of India. However, since the documents were not updated, the SMC building then became Waqf property, and as the Waqf Board says, once a Waqf, always a Waqf.

According to newspaper reports, the Waqf Board had written an application to the Gujarat High Court staking claim on the ownership of two islands in Bet Dwarka in Devbhoomi Dwarka. A perplexed High Court Judge refused to hear the application and asked the Board to revise its petition wondering how can Waqf stake a claim on land in Krishnanagri.

In the Shiv Shakti society of Surat where one of the plot owners registered his plot with the Gujarat Waqf Board, making it a holy place for Muslims, and people started offering Namaz there. This implied that an apartment in any housing society can any day turn into a mosque without any input from the other members of the society if the owner of that apartment decides to endow it as Waqf.

Now, the Ministry has initiated the process of reviewing of provisions of the Waqf Act, 1995 and had consultations with Stakeholders. Two meetings were conducted last year, one in Lucknow on 24 July 2023 and another in New Delhi on 20^th July, wherein most of the issues were discussed and consensus had emerged to make suitable amendments in the Act to solve the problems of the affected Stakeholders.

Further, the Ministry has also analysed the international practices on waqf management in countries such as Kingdom of Saudi Arabia, Egypt, Kuwait, Oman, Pakistan, Bangladesh and Turkey and found that the Waqf Properties are generally regulated by the Laws and Institutions set up by the Government.

The Ministry of Minority Affairs consulted various stakeholders which interalia includes; the report of the Sachar Committee, observations of Joint Parliamentary Committees, concerns raised by public representatives, Media and the general public regarding mismanagement, misuse of powers of Waqf Act and underutilization of Waqf Properties by the Waqf institutions. The Ministry also had consultation with State Waqf Boards.

The Sachar Committee observed that if these properties are put up to efficient and marketable use, they can generate at least a minimum revenue of 10 per cent which is about Rs.12000 crores per annum. The Sachar Committee submitted its Report in 2006 and recommended various measures to improve the management of Waqf.

The Joint Parliamentary Committee Report on Waqf presented to the Rajya Sabha on 4th March 2008 recommended re-vamping of composition of Waqf Boards, Providing a Senior Level Officer as CEO for SWBs, Stringent action for unauthorized alienation of Waqf Properties, and stringent punishment to Mutawallis; if he fails to comply with his duties.

It has also recommended taking certain matters to the High Court under Writ jurisdiction.

The key features of the Waqf (Amendment) Bill, 2024 are renaming the Waqf Act, 1995; formation of Waqf, Government property as Waqf, Power to determine if a property is waqf, Survey of waqf, and the making of Central Waqf Council.

The Act has been renamed the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995, to reflect its broader objective of improving the management and efficiency of Waqf boards and properties, emphasising empowerment and development and effective administration.

The Act allows waqf to be formed by (i) declaration, (ii) recognition based on long-term use (waqf by user), or (iii) endowment when the line of succession ends (waqf-alal-aulad).

The Bill states that only a person practising Islam for at least five years may declare a waqf. It clarifies that the person must own the property being declared.

It removes waqf by the user, where properties could be deemed as waqf based solely on prolonged use for religious purposes.

It also adds that waqf-alal-aulad must not result in the denial of inheritance rights to the donor’s heir including women heirs.

The Bill states that any government property identified as waqf will cease to be so. The Collector of the area will determine ownership in case of uncertainty, and submit a report to the state government. If deemed a government property, he will update the revenue records.

The Act empowers the Waqf Board to inquire and determine if a property is a waqf. The Bill removes this provision.

The Act provides for the appointment of a Survey Commissioner and additional commissioners to survey waqf. The Bill instead empowers Collectors to do the survey. Pending surveys will be conducted as per the state revenue laws.

The Act constitutes the Central Waqf Council to advise the central and state governments and Waqf Boards. The Union Minister in-charge of Waqf is the ex-officio chairperson of the Council. The Act requires that all Council members be Muslims, and at least two must be women. The Bill instead provides that two members must be non-Muslims. MPs, former judges, and eminent persons appointed to the Council as per the Act need not be Muslims.

The Act provides for election of up to two members each from electoral colleges of Muslim: (i) MPs, (ii) MLAs and MLCs, and (iii) Bar Council members, from the state to the Board. The Bill instead empowers the state government to nominate one person from each of the above backgrounds to the Board. They need not be Muslims. It adds that the Board must have: (i) two non-Muslim members. and (ii) at least one member each from Shias, Sunnis, and Backward classes of Muslims. It must also have one member each from Bohra and Agakhani communities if they have waqf in the state. The Act provides that at least two members must be women. The Bill states that two Muslim members must be women.

The Act requires states to constitute Tribunals to address disputes over waqf. The Chairman of these Tribunals must be a Judge of the rank equivalent to a Class-1, District, Sessions, or Civil Judge. Other members include (i) a state officer equal to an Additional District Magistrate, and (ii) a person knowledgeable in Muslim law and jurisprudence. The Bill removes the latter from the Tribunal. It instead provides the following as members: (i) a current or former District Court judge as its chairman, and (ii) a current or former officer of the rank of joint secretary to the state government.

Under the Act, decisions of the Tribunal are final and appeals against its decisions in Courts are prohibited. The High Court can consider matters on its own accord, on an application by the Board, or an aggrieved party. The Bill omits provisions deeming finality to the Tribunal’s decisions. Tribunal’s orders may be appealed in the High Court within 90 days.

The Bill empowers the central government to make rules regarding: (i) registration, (ii) publication of accounts of waqf, and (iii) publication of proceedings of waqf Boards. Under the Act, the state government may get the accounts of waqfs audited at any point. The Bill empowers the central government to get these audited by the CAG or a designated officer.

The Act allows establishing separate Waqf Boards for Sunni and Shia sects if Shia waqf constitutes more than 15 per cent of all waqf properties or waqf income in the state. The Bill also allows separate waqf boards for Aghakhani and Bohra sects.