Waqf Amendment Bill: Why It Is A Robust, Thorough, And Necessary Reform

The Waqf (Amendment) Bill, 2024, is a statement of intent from the Narendra Modi Government that is now in its third term. 

While the BJP has consistently sought to emphasise the inclusive and all-reaching nature of its governance in an effort to combat the accusations of the Congress and I.N.D.I Alliance, many online supporters view this narrative with suspicion. The motto of “Sab Ka Saath, Sab ka Vikaas”, and the Pasmanda outreach had been mocked by more than a few non-cadre supporters. Many even go so far as accusing the BJP of being willingly blind to the tushtikaran that it has failed to take on. 

But these amendments show that the BJP is the only political force that has any interest in combating the minoritarian politics that has dominated the country since Independence.

The amendments correct a series of provisions and powers in the Waqf Act, 1995 (‘the original Act’) that conferred extraordinary power on Waqf Boards, and a lot of asymmetric structure with its governance.

To understand the amendments though, it is necessary to understand what Waqfs are - and their governance mechanism. 

Waqfs: What They Are And The 1995 Act

Waqfs are traditionally compared to trusts under common law: when property is bequeathed in a mostly irrevocable fashion to a beneficiary; but managed by trustees who have no direct interest in the bequeathal itself. Waqf too is a bequeathal, but while it may benefit specific persons, it is made in the name of Allah, and thus ‘irrevocable’. This is also the origin of the rather amusing saying “Once a Waqf, always a Waqf”.

The word “Waqf” itself means “to stop” in Arabic, indicative of the permanency that is implied with bequeathing property in the name of Allah. 

Waqf has to be something bequeathed for some purpose that at some level advances the causes advocated by Islam. This could be charitable, spiritual or such, but it needs to be bequeathed for a purpose that is not deemed sinful. It should also be noted that Waqf is not a Qurannic institution, but one that is created by Hadith, i.e., the recorded sayings of prophet Mohammad. As such there are major divergences among the schools of Islamic Law as to the nature of Waqf. 

In India, Waqf as an established institution came into being with the Delhi Sultanate; when entire villages were given as ‘Waqf’ successively by Islamic rulers including the Mughals. It is this practice that has led to Waqfs accounting for around six lakh acres of property across the country. Much of the malfeasance associated with Waqfs can also be sourced to this fact as well. 

What should be kept in mind is that Waqf Boards do not ‘own’ this property. Rather, it is a statutory body that oversees these ‘individual’ waqf that each has its mutawalli or what we can consider ‘manager’. The Board broadly functions more as a regulator of these entities and their functioning than a Government department that ‘runs’ them. But that does not mean that they are powerless - in fact, it is the opposite.

Powerful Boards With No Transparency Or Accountability 

The modern legal system that governs Waqfs have their origin in the systems that was adopted during colonial times. The regulation of endowments like Waqf was initially left to traditional systems, before the passage of an Act in 1863 and then in 1890 that brought some rudimentary management. 

There was also an Act in 1923 that required Waqfs to be registered in a court within six months of its creation. 

However, it was once the provincial assemblies started assuming power that the Waqf Boards started to be created. Bengal, Sindh, United Provinces and Bombay all enacted legislation to govern Waqfs. It was after Independence however that these state-level Boards became quite powerful. 

One of the only legislations of the first Congress Government that concerned the Muslim community was the Wakf Act, 1954. It is there that the State Waqf Boards were given oversight power over Waqfs. It's here that the extraordinary power of Waqf boards to determine which property is Waqf originated. 

Under section 27 of the 1954 Act, the board could determine whether properties are Waqf or not. However, this could be challenged in a civil court. There were multiple revisions made to the Act over time, but the governance of Waqfs was proving to be quite difficult. 

The problems lie with the fact that the process for creating a Waqf is not a process that is particularly well codified. There is no defined process for the creation of Waqfs as per the Act. This is in part to recognise Islamic law that enables Muslims to create Waqfs as a byproduct of their wills. Moreover, paucity of land records or its inconsistent maintenance leads to endless encroachment and misuse. Mutawallis can take substantial benefit by turning a blind eye or actively encouraging malfeasance. 

This sort of arrangement is exceedingly common, and has been attempted to be solved by stronger legal regimes by the new Act in 1995 and the UPA Government in Amendments passed in 2013. However, they have not yielded any results, and conversely have exacerbated the situation. 

But the larger problem is that the 1995 Act’s provisions are replete with instances of slanted drafting that creates more than a few asymmetric structures and systems. 

For example, the Act prescribes a survey to be undertaken by a specially appointed survey commissioner - whose costs are to be borne by the State Government. The most troubling provision is Section 40, which grants the Waqf Board the power to "identify any property" (similar to the 1954 Act) and restricts challenges to this decision exclusively to a Waqf tribunal. The jurisdiction of the civil courts for recourse was taken out by the then Narasimha Rao Government when bringing about the current act. 

Another egregious provision that deserves mention is how evacuee property (sometimes known as ‘enemy property’) was converted from being used for the rehabilitation of those affected by Partition or for public welfare - into Waqfs. In 1984, the Indira Gandhi Government passed an amendment to the act to retrospectively make those properties Waqfs again based on whether they were Waqf before it came to the custodian of evacuee property. 

Quite literally, properties that were left behind by those during Partition and used for the rehabilitation of displaced persons coming from newly created Pakistan, were turned into waqf as a result of this amendment. 

This provision was then further retained in Section 108 of the 1995 Act. This was further reinforced through the 2013 UPA era amendment to the Act that gave the Act and its provisions an overriding effect. 

Almost all of these pervasive and deep-rooted issues have been comprehensively resolved by the proposed Waqf Amendment Bill. 

The Waqf Bill, 2024: Well Thought Through

The Waqf Amendment BIll makes tangible changes to the original Act, eliminating virtually all the arbitrary and iniquitous provisions. 

It completely eliminates Section 40, which enabled the power of Waqf to identify and claim any property by Waqf without any checks. Moreover, the amendment requires that the registration of the Waqf property be made only 90 days after the same is advertised in newspapers. 

Similarly, the amendment will create a centralised portal for Waqf property. This will require all Waqfs to have actual documentation that shows what is claimed as Waqf is actually Waqf as per records. The provision that allowed non-Muslims to donate to Waqf has also been removed. 

The Amendment also proposes a full prohibition on the conversion of any Government property to Waqf  - a common sense provision. Similarly, the powers and role  of the Survey Commissioners are essentially eliminated through the creation of a centralised portal.

This could permanently solve the issue of Waqf claims on property like we have seen in Vijayapura in Karnataka or in Munambam in Kerala as no such claim cannot be raised arbitrarily. As for enemy property, it again repeals the provision vesting enemy/evacuee property with Waqfs—ensuring that they are returned for the original purpose of rehabilitation. 

The ability of Mutawalis to run amok has also been circumscribed under the proposed amendment by enabling the removal of those Mutawallis who have not maintained records, and those who have encroached Waqf lands are prohibited from being Mutwallis as well. 

The Amendment also includes provisions for Aghakhani and Bohra Waqfs, which were completely ignored under Waqfs so far. The proposed Amendments also include provisions for a stricter audit for Waqf property.  

However, the most contentious provision in the entire amendment is the provision to add non-Muslims to the Central Waqf Council and the State Waqf Boards. This provision has attracted significant criticism, with many comparing it to whether non-Hindus should be appointed to Temple trusts under Government control. 

However, this sort of comparison is entirely mistaken and misguided. As the  core issue in the case of Waqfs is the management of properties and not religious at all. The functions of the clerics or the day-to-day management do not fall within ambit of the Waqf Board’s control. The Mutawalli and the Waqf Board’s relationship is centred specifically on property management. Anyone reading the 1995 Act would understand that there is little to no relation to any religious duty, obligation or practice that is carried in Waqf property. 

This is in direct contrast to how HRCE acts and departments function where the administrator is obliged or required under the Acts to help facilitate the discharge of religious functions or practice. In some cases, the HRCEs are appointing and transferring priests, while in the case of Waqf Boards there is no procedure or system to appoint, dismiss or transfer any Muslim cleric. In fact, the Amendment has not made any changes to the system of the appointment of Mutawallis. 

The Boards and CWC are essentially oversight institutions concerned with revenue and administration of property. It should also be noted that a great deal of property, (more than 50 per cent as per WAMSI) is not property with any religious nature. 

There might well be compromises struck in the new bill that is introduced after the JPC report. But the core and soul of the amendment would be to remove the ability of Waqfs to claim property with zero oversight and judicial process. 

The Waqf Amendment Bill, 2024 is truly a remarkable piece of legislation and is a fundamental resetting of the legal architecture surrounding the laws of the Muslim community that have been given an irrational reverence since Independence. The Bill dismantles the special and arbitrary protections and powers vested to issues relating to Islamic practices.  

It becomes even more impressive considering that unlike in 2014 and 2019, the BJP does not have a majority of its own. The proposal represents a serious commitment by the BJP to be the primary and only political bulwark against minoritarianism. 

Hopefully, the JPC report that is submitted during the course of the Winter Session will have constructive suggestions on taking forward the proposed amendment and pave the way forward for its enactment. 

The author would like to thank Monalisa Nanda for her inputs.