In recent years, the concept of 'Waqf' has emerged as a topic of growing controversy and debate. Rooted in a rich history of religious endowments and charitable foundations, Waqf has traditionally played a vital role in the Muslim personal law, especially in countries like India and Malaysia. However, this age-old institution has entangled itself in a web of legal, social, and political issues, raising concerns about its contemporary relevance and legality.

As nearly 120 writ petitions challenging the provisions of Wakf Act 1995 remain pending in various Indian courts. This brings the legal framework surrounding Waqf under scrutiny. The issue stems from the inherent complexities in defining and managing Waqf properties, as well as the dispute settlement powers vested in hands of the Waqf Boards. The blurred lines between religious devotion, heritage preservation, and property rights have contributed to the recurring disputes.

Additionally, inconsistencies in administrative judgements and other challenges, such as encroachments, have been unveiled as a result of the consolidation and digitization of Waqf records and statistics through systems like the Waqf Assets Management System of India.[1] This has sparked further debates regarding the transparency and the efficacy of the Waqf management in the contemporary world.

In this light, it is crucial to investigate the various facets of the modern Waqf landscape, from its historical relevance to its present-day conflicts. This article explores the complexities of Waqf and looks at how this ancient institution has developed into a source of controversy in the modern era.

Meaning of Waqf

Waqf, according to the Islamic tradition, is the permanent dedication of property for pious, religious, or charitable purposes. It extinguishes the owner's rights, rendering the property inalienable and irrevocable.

In the eyes of the law, as also defined in the Wakf Act, 1995, and as affirmed in the case of M Kazim v. A Asghar Ali,[2] Waqf has been defined as the permanent dedication of property for purposes recognized by Muslim Law as religious, pious, or charitable.[3]

The term 'waqf', in its literal sense could be understood as 'detention' or 'tying up.' The concept could be categorized into two classes based upon the objective: public, serving public, religious, or charitable objectives; and private, catering to the settlor's family and descendants, known as 'Waqf-alal-aulad.'

Once a property is dedicated as waqf, it remains so perpetually, emphasizing upon it's inalienable and irrevocable nature.

Legal Evolution of Waqf Governance in India

In India, Waqfs trace their origins back to the Delhi Sultanate. However, during British colonial rule, a dispute over a waqf property led to the Privy Council of London affirming it to be invalid. Despite this ruling, the Mussalman Waqf Validating Act of 1913 was passed in India to safeguard waqfs, which have since become one of the largest landowners in the country.

Post-independence, the Wakf Act of 1954 was enacted, which established Waqf Boards and granted them extensive executive and quasi-judicial powers. These boards were tasked with supervision and sanctioning the alienation of the waqf land in conformity with Islamic law. The Act also provided for the Waqf properties to be registered, and that the Waqf board members must be Muslims and knowledgeable in Islamic law or law and finance.

In 1964, Nehru introduced the Central Waqf Council through an amendment to the Wakf Act, 1954, further centralizing waqf governance.[4] However, it was the landmark amendment of 1995 that marked a significant shift, entrusting the state and union territory-specific waqf boards with substantial powers. These boards, in consonance with the Central Waqf Council, now held the authority to advise the government on waqf property matters. This legislative framework highlights the remarkable transformation in the waqf governance that equiped waqf boards to successfully address contemporary challenges and demands.

Draconian Provisions under the Wakf Act, 1995

The Wakf Act of 1995, fraught with draconian provisions, has given rise to considerable concerns, sparking debates over issues related to fairness and equity.

Some as specified are:

1. Section 3: Unilateral Waqf Claim, allows Waqf Boards to claim land based on mere belief without requiring proof of ownership. This means that if the Waqf Board is of the opinion that a property belongs to them, they can assert control over it. This unilateral authority can lead to disputes and may unfairly deprive individuals of their property rights. It places the burden of proof on property owners, which allows a unilateral claim of the waqf over the property with very limited opportunity for justice or recovery.
    
2. Section 40: Absolute Authority of Waqf Boards, provides that if a question arises as to whether a property is a waqf property or not; or if the property that it claims is registered in pursuance of the Indian Trusts Act, 1882 or under the Societies Registration Act, 1860 or any other act, the board would have an unchecked authority to decide upon the same. The decision shall be final unless revoked by the tribunal. This clearly signifies that if an individual doesn't agree with the board's decision, he has limited options for redressal and recovery of his property. The lack of a fair hearing or appeal process can lead to unjust property seizures.
    
3. Section 14: Composition of these boards, provides that the board shall consist of all Muslim members. While the intention may be to ensure that those managing waqf properties are from the same religious community, it raises concerns about potential discrimination against individuals from other religious backgrounds, especially when the board holds the position of the deciding authority in case of disputes. This exclusivity may not align with principles of fairness and equality.
    
4. Section 83: Finality of Tribunal Awards, states that the decisions taken by the Waqf tribunal are final and binding, leaving no room for recourse to civil courts. This provision limits individuals' legal remedies and can be seen as unjust if they believe their property rights have been violated and in case of disagreement with the tribunal's decision. It essentially places the tribunal's decisions beyond the reach of the regular justice system.
    
5. Section 85: Jurisdiction of Civil Courts Barred, restricts individuals from seeking redressal in civil courts for property disputes involving waqf issues. They are effectively denied the chance to seek redress through the usual legal processes. The Madras High Court, in the case Nagore Andavar Sambiranichatty Dhoopam Family Trust, Nagapattinam v. S. Jegabar Ali, determined that, in accordance with Section 85 of The Wakf Act, 1995, Civil court has no jurisdiction and that all matters relating to waqf and waqf properties should be brought before waqf tribunals. This restriction on access to jurisdiction of civil courts may turn into restriction on access to justice, particularly if people believe their rights have been wrongfully violated and their properties have been encroached upon.
    
6. Section 88: Bar to challenge the validity of any notification, prevents individuals from questioning the validity of notifications issued by the tribunal in civil courts. This lack of oversight can create a situation where Waqf Boards have significant power without effective checks and balances. It may lead to potential abuses of authority without a means for individuals to legally challenge them. In the case of Intazamia Committee Idgah v. M.P. Waqf Board, it was contended that when an appeal is made against any decision, to the Tribunal and if the decision of the Tribunal is final, then the jurisdiction of the Civil Court is dismissed. This unbridled authority, coupled with the tribunal's finality, leaves individuals without a recourse to challenge this abuse of power.
    
7. Section 101: Designation of Waqf Board Members as Public Servants, this provision designates Waqf Board members as public servants, entailing them with unique privileges and legal protections such as protection from civil suits, immunity against detention and right to be indemnified for the damages arising out of legal actions taken against their official actions; which are not granted to other religious institutions. This preferential treatment may be considered discriminatory and unfair as it establishes different standards for different religious groups within the legal framework. This could greatly affect the social and religious landscape of a diverse society like India.

The Data Perspective

If we delve into the numbers, it becomes evident that the Waqf system has taken a distressing turn.

Through the Waqf Assets Management System of India (WAMSI), we discover a staggering inventory: 355,720 estates, 871,292 immovable properties, 16,713 movable properties, and 329,995 digitalized records across India's territories are under the Waqf Board. These figures should serve as a beacon of hope for humanitarian and charitable endeavours, yet reality paints a much darker picture.

Dryly, out of the 871,292 immovable properties officially listed under the Waqf, 58,898 are encroached, and for 437,974, there is no information available.[8] This revelation highlights a severe injustice: properties designated for religious and philanthropic purposes have fallen victim to encroachment, neglect, and mismanagement. In some instances, the custodians of these assets have strayed far from their intended purpose.

What's even more disheartening is the lack of action from the government and the judicial institutions despite official statistics revealing encroachments. While the rights of individuals and the sanctity of these properties are compromised, and justice remains elusive.

Legality of the Waqf

The Wakf Act of 1995, brings forth a complex set of challenges and legal ramifications that intersect with various facets of Indian law. This discussion delves deeper into these concerns under distinct headings-

Constitutional Implications:

• Secularism: One of the major concerns is the potential religion-based clash due to the exclusive focus on Islam within the Waqf Act. The idea of secularism is to keep religion out of politics and to treat people of all religious and nonreligious beliefs equally. Critics argue that this exclusive focus on one religion does not align with the concept of a secular state, which should ideally maintain equal distance from all religions and not favour any particular faith. According to the Act, while exclusive Muslim membership is consistent with the fundamental Islamic basis of waqf properties, it is argued that it does not constitute a secular approach to governance. Besides, no other religion is provided with a similar clause or provision.
   
• Infringement of Article 14 (Right to Equality): The right to equality is enshrined in the constitution under Article 14 of the Indian Constitution, which states that everyone is equal before the law and everyone is protected against discrimination based on race, religion, caste, gender, or place of birth. The right guarantees that everyone will be treated equally. However, the concentration of power within Waqf Boards and their decisions influenced by political considerations and identity politics, leads to unequal treatment. Non-Muslim individuals and those whose lands have been encroached upon may find themselves at a disadvantaged position, thus undermining the very premise of equal protection under law.
   
• Infringement of Article 21 (Right to Life and Personal Liberty): Article 21 of the Indian Constitution provides for the fundamental right to life and personal liberty to all individuals. It safeguards a fundamental component of human dignity and individual freedom by guaranteeing that no one may be deprived of their life or personal freedom other than in accordance with the procedure established by law. Article 21 may be infringed upon by the encroachment and mismanagement of the properties of the people, disrupting the lives and livelihoods of individuals and communities, exacerbated by a lack of effective legal recourse and the potential for arbitrary actions within the Waqf system.
   
• Infringement of Article 29 and 30 (Cultural and Educational Rights): Article 29 and Article 30 of the Indian Constitution safeguard the rights of religious and linguistic minorities. The minorities are guaranteed the right to preserve their own language, and culture by virtue of Article 29. Similarly, Article 30 provides minorities the freedom to create and run the educational institutions of their choice, enabling them to protect their cultural and educational legacy. However, the lack of transparency and equitable governance within the Waqf system hinders the educational and cultural development of communities. Non-Muslim minorities may face challenges in preserving their unique identity and heritage.
   
• Article 300 (Right to Property): The Indian Constitution addresses the right to property in Article 300. It establishes the foundation for issues pertaining to property rights and acquisitions and declares that the government cannot take away someone's property unless it has legal authorization to do so. This article ensures that individuals' property rights are protected and can only be infringed upon through legal processes and fair compensation, upholding a key aspect of individual liberty and property rights.

Any encroachment or interference with the property rights of individuals or entities in the context of waqf management must be done in accordance with the law and should not be arbitrary or discriminatory. The apex court in the case of the state Andhra Pradesh v. AP State Wakf Board and Ors[10]. held that Waqf Boards are under the definition of 'State' for the purposes of Article 12, hence if any property is acquired, the current owner must be compensated.

Further, The principle of Eminent Domain was explained by the Apex Court in the State of Bihar v. Maharajdhiraja Sir Kameshwar Singh & Ors[11] whereby eminent domain was held as the right of compulsory acquisition of property upon payment of compensation to the affected individuals. Supplementary, in the case of M/s. Delhi Airtech Services v. State of UP[12], the Supreme Court observed that for land acquisition, the land loser would be entitled to compensation, and the legislative intent behind providing such compensation is to safeguard and benefit the land losers.

Violative of the principles of Natural Justice:

1. Audi Alteram Partem[13]: Central to the fabric of the legal system is the cardinal principle of natural justice, notably, specifically, what has been colloquially referred as 'audi alteram partem', meaning that the affected individual be accorded a meaningful opportunity to be heard. But This statute stands at odds with thetime-honoured principle, as it allows the Waqf Board to pronounce judgments on the status of properties without affording the concerned parties an equitable opportunity to voice their perspectives.
   
   One may say that it falls within the statutory exclusion, which is one of the exceptions against the principles of natural justice. However, In the case of Ram Krishna Verma v. Province of UP[14] and Karnataka Public Service Commission v. B.M. Vijay Shankar[15], it was held that any such statutory exclusion must be rigorously scrutinized through the prism of Article 14 of the Constitution. An in-depth analysis of the Wakf Act raises pertinent questions as to why the principles of natural justice have seemingly been relegated to the periphery, thereby potentially infringing upon the constitutional bedrock of fairness and impartiality.
    
2. Rule against Bias: It means that no one should be a judge in his own cause or that the tribunal must be impartial, and that the Justice should not only be done but also be seen to be done. Examining the composition of the waqf board which is entrusted with the power to decide whether a property belongs to the waqf or not, it could potentially raise questions about fairness and impartiality due to its exclusive Muslim membership. Similarly, the clause stating that the waqf tribunal's award is final and non-appealable raises the possibility of biases in the verdicts.
    

Political Appeasement

While the Wakf Act of 1995, was aimed to regulate Muslim charitable endowments, it has come to hold a distinct role in India's political landscape. The 1995 amendment was a sweeping reform whose ramifications drew wide attention due to its implications in the realm of politics and appeasement. This amendment, under the influence of the so-called secular parties, aimed to signal their support to the Muslim vote bank, ushering in the era of political appeasement.

This political maneuver marked the beginning of appeasement politics in India, where community property and interests became pivotal to religious politics. The Wakf Act established a unique framework for Muslims, setting them apart from Hindus, Sikhs, or Christians or a practice unlike any in world. Hindu temples, in contrast, remain subject to a complex web of laws, including the Religious Endowments Act of 1863 and the Indian Trusts Act of 1882, with some states having their own regulations, effectively placing Hindu religious institutions under direct state control.

The governance of waqf properties has become a matter of profound controversy, indicative of a broader issue. The term 'Waqf' finds its place within the constitutional framework of India, entailing Entries No. 10 'Trust and trustees' and No. 28 'Charities and charitable institutions, charitable and religious endowments, and religious institutions in the Concurrent list of the 7th Schedule[16]. This constitutional placement imparts a shared responsibility for its proper administration to both the Central and State governments. However, regrettably, the governance of waqf properties is often seen metamorphing into a political tool, wielded by governments to safeguard their vote banks and appease potential constituents.

It is noteworthy that discontent with the Wakf Act is not just limited to the non-Muslim communities, but resonates within the Muslim community as well. Illustratively, in instances such as the sale of burial land by the Waqf board in Uttar Pradesh for a shopping mall to the local politicians, a palpable sense of disapproval emerged among Muslims[17]. It appeared to primarily benefit a select group of influential board members. These incidents not only underscore the politicization of waqfs but also raise questions about whether the intended beneficiaries are truly gaining from these arrangements.

The Wakf Act's political repercussions, including its influence on electoral campaigns and the management of religious properties, underscore the complex interplay between religion and politics in India's diverse landscape. The Act raises concerns regarding the equitable management of religious endowments, transparency in governance, and the impact of political decisions on other religious institutions.

Recent Judicial Insights
In recent years, there has been a noticeable shift in public opinion and legal judgments concerning the concept of Waqf in India. This shift in perception is a result of growing awareness of the Waqf institution's potential risks to the secular values enshrined in the Indian Constitution and the rights of individuals, regardless of their religious affiliation. This change in perspective is greatly influenced by several judicial pronouncements and many expert opinions, which have focussed on the necessity of a liberal and just approach towards management of wakf properties with its overall bearing upon society at large.

• Scope of Waqf Motive:
  In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad[18], the court questioned the premise that a waqf must always have a religious motive. It emphasized that waqfs should be created for the benefit of the Muslim community. This interpretation challenges the broader scope of waqf properties, which increases openness and reduces the potential for encroachments.
  
 
• Exceptions on the jurisdiction of Civil Courts:
  In the case of Rashid Wali Beg v. Farid Pindari[19], the court suggests that the bar on jurisdiction of civil courts under the Act is not absolute, implying that some cases may still be entertained by the civil courts.
  
  Similarly, in Faseela M. v. Munnerul Islam Madrasa Committee[20], the court acknowledged that special disputes involving waqf properties that are not covered by certain sections of the Act may be tried exclusively in civil courts.

 
• Transparency from Arbitrariness:
  1. In the case of Committee of Management Kanya Junior High School Bal Vidya Mandir Inter College v. Rajendra Singh Rawat, the Uttarakhand High Court stressed upon the need for fair and impartial appointments to waqf boards[21].
      
  2. In the case of the Waqf Board. Rajasthan v. Jindal Saw Limited And Ors[22], the Supreme Court observed that a dilapidated platform cannot be given the character of a religious place for the purpose of offering namaaz under the Wakf Act without any indication of dedication or use, thereby setting a precedent against arbitrary claims and encroachments.
      
• Procedural Fairness:
  1. In the case of Salem Muslim Burial Ground Protection Committee v. State of Tamil Nadu[23], the Supreme Court stressed upon the necessity of conducting surveys before declaring a property as waqf. The court ruled that a mere notification is insufficient for declaring a property as waqf. The apex court held that the procedure shall call for two surveys, the resolution of disagreements, and the filing of a report to the state government, which shall be indispensable. The court highlighted the importance of complying with the statutory process for increased transparency and minimized discrepancies.
      
  2. In Tamil Nadu Wakf Board v. Hathija Ammal[24], the court emphasized upon the necessity for the Wakf Board to follow prescribed procedures provided under sections 4, 5 and 6 of the Wakf Act, for notifying properties as waqfs, underlining the need for a rigorous investigation into property claims.
      
  3. In the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal[25], it was observed that the procedure as mentioned in Section 4 of the Wakf Act is not merely an informal enquiry but a formal enquiry to find out whether the property is a wakf property or not.

The array of legal cases discussed highlights the contentious nature of the Wakf Act, where various interpretations and questions are raised about fairness, transparency, and administration of the institution. These disputes, both within and outside the courtroom, signify the ongoing struggle to strike a balance between tradition, religious rights, and legal equity. They emphasize upon the need for continual legal scrutiny to address these concerns and bring greater transparency, fairness, and accountability to the management of waqf assets.

Conclusion
In conclusion, the cumulative effect of these contentious provisions underscores the pressing need for fundamental changes and reforms within the Waqf system. The concerns raised are not merely theoretical but have practical repercussions. The concentration of power within the Waqf Boards, coupled with a dearth of transparency and adequate legal channels for recourse, creates an environment where the rights of individuals can be unjustly compromised.

In this dynamic environment, it is essential for lawmakers, legal experts, and stakeholders to engage in thoughtful dialogue, considering the changing opinions and evolving jurisprudence surrounding waqf. Such discussions should aim to strike a harmonious balance between preserving the rich heritage of the institution and upholding the principles of justice, fairness, and the rule of law.

To sustain justice, fairness, and the values of a secular and just society, reforms in government, more transparency, and equal legal frameworks are not just desirable but necessary. The time for change has come, so we must make sure that the Waqf institution, like every other, continues to be an embodiment of compassion, fairness, and the greater good.

In a nutshell, the article strongly advocates and pushes for extensive reforms and enhanced transparency within the Waqf institution. It underscores the imperatives of justice, fairness, and the rule of law in a pluralistic and secular society like India. As the nation seeks to preserve its rich heritage while upholding constitutional ideals, the time has come for a thoughtful dialogue and meaningful change within the Waqf system.

End Notes:

1. Waqf Assets Management System of India (NIC)
2. [1932] 11 AIR 238(Patna)
3. The Wakf Act 1995, s. 3(r)
4. Wakf (Amendment) Act, 1964
5. [2012] 1 LW 1028 (MAD)
6. [1996] AIR 47 (MP)
7. Abanti Bose, 'Understanding the essential provisions of the Waqf Act, 1955' (blog.ipleaders.in, 28 Aug 2020) accessed 10 September 2023
8. 'Waqf Assets Management System of India' (NIC) https://wamsi.nic.in/wamsi/dashBoardAction.do?method=totalRegisteredProp accessed 23rd September 2023
9. The Constitution of India 1950, The Preamble
10. [2022] SCC Online 159 (SC)
11. [1952] 1 SCR 889 (SC)
12. [2022] SCC OnLine 1408 (SC)
13. 'AUDI ALTERAM PARTEM Definition & Meaning - Black's Law Dictionary' (The Law Dictionary 4 November 2011) https://thelawdictionary.org/audi-alteram-partem/ accessed 24 September 2023
14. [1992] 2 SCR 378 (SC)
15. [1992] 1 SCR 668 (SC)
16. The Constitution of India 1950, Seventh Schedule, List- III
17. Ashali Verma, 'The Curious Case of Waqf Board' (The Times of India, New Delhi, 25 September 2022) https://timesofindia.indiatimes.com/city/delhi/the-curious-case-of-waqf-board/articleshow/94516273.cms accessed 25 September 2023
18. [1982] 2 KarLJ 176 (Kant)
19. [2022] 4 SCC 414 (SC)
20. [2015] 3 SCC (Civ) 419 (SC)
21. Committee of Management Kanya Junior High School Bal Vidya Mandir Inter College v. Rajendra Singh Rawat [2006] www.worldpulse.com/comment/175788?comment=175788
22. [2022] SCC OnLine 529 (SC)
23. [2023] LiveLaw 454 (SC) https://www.livelaw.in/pdf_upload/454-salem-muslim-burial-ground-protection-committee-v-state-of-tamil-nadu-18-may-2023-475892.pdf
24. [2001] 8 SCC 528 (SC)
25. [2017] 13 SCC 174 (SC)