WAQF is an Islamic practice where a person donates an asset, such as cash or property to Allah for a specific charitable purpose, like education, health or worship. Once donated, the asset belongs to Allah, cannot be sold, gifted or inherited and its benefits support any Shariah-compliant cause. Waqf, similar to an endowment, is a form of ongoing charity (sadaqah jariyah) that sustainably benefits society. The term "waqf" comes from the Arabic Habs, meaning "to hold." Managed by a Mutawalli, waqf is enforceable by law and deeply integrated into Muslim religious and social life.

It is observed in M Kazim vs A Asghar Ali that technically it means dedication of some specific property for a pious purpose or secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good objects, to accommodate loan.

Meaning And Historical Background Of Waqf:

Waqf is an Islamic endowment, originating from the Arabic word "waqufa," meaning to detain or hold. It comprises the permanent dedication of property for charitable or religious purposes, prohibiting its sale, gift, or inheritance.

• Definitions in Law:
  • Under Hanafi Law, waqf means the holding of property for charitable use, placing it under God's implied ownership for the benefit of humanity.
  • The Mussalman Waqf Validating Act, 1913, defines waqf as a permanent dedication by Muslims for religious, pious, or charitable purposes.
  • The Mussalman Waqf Act, 1923, excludes waqfs where the founder or their family can claim benefits.
  • The Waqf Act, 1954 broadens this to include any property dedicated by a Muslim for recognized religious, pious, or charitable purposes.
  • However, the Waqf Act, 1995 strengthened waqf boards and established waqf tribunals in each state. Amendments in 2013 added eviction powers and penalties to enhance waqf property management. Waqf Repeal Bill, 2022 aims for equitable treatment of waqf and other religious entities, introduced in the Rajya Sabha in December 2023.
     
• History and Location of WAQF:
  • The concept of waqf, encouraged by the Qur'an and hadith, is an Islamic tradition of dedicating property for charitable purposes. Although no direct Qur'anic command establishes waqf, verses such as Al-Baqarah [2]:267 and Al-i'-Imran [3]:92 encourage acts of charity. A notable hadith recounts the Prophet Muhammad advising Umar to make his land in Khyber inalienable and donate its profits to charity, setting an early example of waqf.
     
  • Waqf has ancient roots with the oldest known deeds from the 9th and early 10th centuries during the Abbasid period including documents preserved in museums in Istanbul, Paris, and Tel Aviv. Early waqfs, such as a date palm grove supporting Medina's poor, highlight its longstanding role in Islamic society.
     

• Administration Of Wakf:

  • The administration of a waqf typically involves appointing an administrator (nāẓir, mutawallī, or ḳayyim) by the founder to manage it and arrange for future administrators. In cases with few beneficiaries, direct administration by beneficiaries may suffice, removing the need for an external administrator. Administrators must be capable, trustworthy, and skilled. While some scholars require the administrator to be Muslim, the Hanafi school does not impose this condition.
     
• Mutawalli:
  • A Mutawalli manages waqf property solely as an administrator with no right to transfer it. Any adult of sound mind can be appointed, though religious duties may restrict non-Muslims or women. The Mutawalli ensures the property's benefits go to intended recipients with limited control over its use. The Supreme Court in Ahmad Arif vs Wealth Tax Commissioner clarified that a Mutawalli cannot sell or lease waqf property without court approval or explicit permission in the wakfnama.
  • However, the waqf founder generally appoints the Mutawalli, but if unassigned, the founder's executor, a dying Mutawalli, or the Court may appoint one.
     
• Powers and Duties of Mutawalli:
  • A Mutawalli as manager of a waqf has specific rights over the property's usufructs but not ownership. However, following are some of the important powers of Mutawalli:
  • Using the usufructs to benefit the waqf's end beneficiaries.
  • Seeking court authorization to sell or borrow money if necessary.
  • Filing suits to protect waqf interests.
  • Leasing the property for up to three years (agricultural) or one year (non-agricultural), with court permission for extensions.
  • Receiving remuneration as set by the founder, with potential court adjustment if inadequate.

The Council
Waqf boards were first constituted under British rule in 1913, with the Mussalman Waqf Act of 1923 regulating waqfs. In 1964, the Central Waqf Council, under the Ministry of Minority Affairs, was established as per the Waqf Act, 1954 (later repealed), to advise on Waqf Boards' functioning.

Central Waqf Council: This statutory body, operating under the Waqf Act, 1995, advises the government on State Waqf Boards and oversees waqf property management. Waqf refers to the permanent dedication of properties for religious or charitable purposes under Muslim Law.

State Waqf Boards: Established by state governments, these boards manage and protect waqf properties, forming local committees as needed. They are corporate entities with the authority to acquire property. For states with significant Shia waqf properties (over 15%), a separate Shia Waqf Board is constituted.

However, India has 30 Waqf Boards across 28 states and Union Territories, excluding Goa, Arunachal Pradesh, Mizoram, Nagaland, Sikkim, and Daman and Diu.

The 2011 Shashvat Committee report highlighted that waqf properties, valued at Rs. 1.2 lakh crore, underperformed financially and suffered from a lack of qualified Muslim officers for management, suggesting the need for a dedicated administrative cadre.

Challenges In Waqf Management

The Major challenges highlighted by the stakeholders are of limited diversity in constitution of Waqf Board and Central Waqf Council, non-maintenance of proper accounts of properties by Mutawallis, misuse of power 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.

Main challenges in waqf management are:

• Limited diversity and accountability: The Waqf Board and Central Waqf Council lack diverse representation. Mutawallis (caretakers) often fail to maintain proper accounts, and misuse of power is common.
• Property management issues: There's poor coordination with local revenue authorities, issues in property registration, and challenges in removing encroachments. Waqf Boards have sweeping powers to claim properties, leading to disputes and litigation.
• Lack of judicial oversight: Tribunal decisions on waqf properties are final, with no option for appeal, which affects transparency and accountability.
• Incomplete Surveys: Waqf property surveys are often incomplete or unsatisfactory due to a lack of expertise among Survey Commissioners and inadequate coordination with Revenue Departments.
• Encroachment and misuse: Waqf properties face frequent encroachments, and provisions of the Waqf Act are sometimes misused, leading to disharmony.
• Non-notification of rules: Some state governments have yet to notify rules required under the Waqf Act, further complicating governance.
• Irrevocability and low income: Once declared waqf, properties cannot be altered, which may lead to prolonged disputes, while many waqf properties generate low or negligible income.
   

The Waqf (Amendment) Bill, 2024

The Waqf (Amendment) Bill, 2024 was introduced in Lok Sabha on August 8, 2024. It amends the Waqf Act, 1995. The Act regulates waqf property in India. The Act defines waqf as an endowment of movable or immovable property for purposes considered pious, religious, or charitable under Muslim law. Every state is required to constitute a Waqf Board to manage waqf. The Bill renames the Act to 'United Waqf Management, Empowerment, Efficiency and Development Act, 1995'. The main features of the Waqf (Amendment) Bill, 2024 are:

• Formation of waqf: Only Muslims practicing for at least five years can declare waqf, removing the option of waqf by user, and ensuring inheritance rights for heirs, including women.
• Government property: Government-owned properties identified as waqf will be reclaimed, with the Collector confirming ownership and updating records.
• Power to declare waqf: The Waqf Board's authority to determine if a property is waqf is removed.
• Survey of Waqf: Collectors, not Survey Commissioners, will now conduct waqf surveys, as per state revenue laws.
• Central Waqf council: The Council must include two non-Muslim members, with two Muslim women among the Muslim representatives.
• Waqf boards: State governments can nominate board members, including non-Muslims, with representation from various Muslim communities and at least two Muslim women.
• Tribunals: The Bill modifies the Tribunal composition, requiring a District Court judge as chairman and removing the need for a member versed in Muslim law.
• Appeals: Tribunal decisions are no longer final; appeals may be made to the High Court within 90 days.
• Central government powers: The Bill allows the central government to set rules for waqf registration and financial audits by the CAG.
• Separate Waqf boards: The Bill permits separate waqf boards for Bohra and Agakhani communities, alongside Sunni and Shia sects.

The object of the government for amendments of Waqf Act:
The Waqf system contains 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.

Controversy Surrounding The Proposed Waqf (Amendment) Bill, 2024

The Waqf (Amendment) Bill, 2024, introduced by the government on August 8, seeks to amend the Waqf Act of 1995 with 44 changes intended to enhance waqf property management and administration.

Important proposals include giving the Central government a more significant role in waqf affairs, including non-Muslims on waqf boards, and renaming the act as the "Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995."

These provisions sparked criticism from opposition parties and sections of the Muslim community, who argued that the amendments lacked stakeholder consultation and undermined constitutional principles. Critics labeled the changes, such as the inclusion of non-Muslim board members and requirements for waqf property donors to have practiced Islam for at least five years, as controversial. Calls for the bill's withdrawal or referral to a parliamentary standing committee led to its assignment to a 31-member Joint Parliamentary Committee (JPC) for further review.

Criticisms on Waqf Amendment Bill, 2024
The Waqf (Amendment) Bill, 2024 has sparked significant controversy and criticism since its introduction in the Lok Sabha. Many view it as an attempt to undermine the autonomy of the Muslim community over its religious affairs:

• Infringement on religious rights: Critics argue that the bill infringes on minorities' constitutional rights, particularly religious freedom under Articles 14, 25, 26, and 29. The mandatory inclusion of non-Muslims on Waqf boards is seen as interfering with the community's management of its religious properties.
• Increased government control: The bill centralizes control by granting significant powers to state authorities, including district collectors, over Waqf properties and disputes. This shift is viewed as bureaucratic overreach, potentially causing delays and legal challenges.
• Lack of community consultation: The bill has been criticized for lacking adequate consultation with Muslim stakeholders, raising concerns about its legitimacy and acceptance within the community.
• Exclusion of historical context: The bill removes provisions for recognizing "Waqf by user," which could jeopardize properties historically used for Waqf purposes without formal documentation.
• Potential for increased disputes: Removing Waqf Tribunal authority and transferring property determination to district collectors may lead to more disputes and complicate the resolution process.
• Concerns over Non-Muslim representation: The requirement for non-Muslim members on Waqf boards is opposed by critics who argue that such representation may undermine the boards' integrity due to a lack of understanding of Islamic law.

Suggestions for the Joint Parliamentary Committee (JPC) on the Waqf (Amendment) Bill:

• Diversify representation: Ensure 40% non-Muslim and 60% diverse Muslim representation on waqf advisory boards across communities.
• Ministry accountability: Require waqf boards to report directly to a designated government ministry for better oversight.
• Judicial supervision: Place waqf tribunals under High Courts and the Supreme Court to avoid parallel justice systems.
• Equitable financial treatment: Align waqf taxes and subsidies with those for other religious organizations.
• Digitization and transparency: Digitize waqf property records with public access and immediate updates.
• Time-Limited Legal resolutions: Limit waqf legal disputes to a three-month resolution period.
• Annual Audits: Require yearly audits by the CAG to ensure accountability.
• Restrict foreign funding: Ban foreign or NGO funding without government approval.
• Regulate property claims: Introduce strict procedures for claiming properties as waqf to prevent misuse.

Potential Impact Of The Amendment

The Waqf (Amendment) Bill, 2024 has sparked debate, with supporters advocating for better management and oversight of waqf properties, potentially reducing corruption and improving resource utilization. Critics, however, argue that the bill infringes on the autonomy of Muslim community affairs and could threaten the integrity of waqf assets. Key points of contention include the inclusion of non-Muslim members on waqf boards and increased government oversight, which some view as a secular interference in religious matters.

The bill's potential conflict with the Indian Constitution is a central issue, particularly in relation to Articles 16(5), 25, and 26:

1. Article 16(5): Allows offices in religious institutions to be held by individuals of the same religion. Critics worry that non-Muslim board members may violate this provision.
2. Article 25: Guarantees the freedom to practice religion. Government control over waqf properties could be seen as limiting this right.
3. Article 26: Protects religious groups' right to manage their own affairs, including property. Increased government oversight, like involving district collectors, could be seen as interference in Muslim community affairs.

Legal challenges are expected due to concerns over autonomy, but the government justifies the bill as a means to ensure better governance and transparency, aiming to balance efficiency with constitutional rights.

Conclusion
In conclusion, the concept of waqf has deep historical and cultural roots, serving as a vital tool for religious and charitable endowments within the Muslim community. However, evolving societal and legal demands have highlighted challenges in waqf management from issues of transparency and accountability to property disputes and governance concerns. The Waqf (Amendment) Bill, 2024, seeks to address these challenges by introducing reforms aimed at improving efficiency, ensuring inclusivity and strengthening administrative oversight.

Nonetheless, these proposed changes have ignited considerable debate with some stakeholders voicing concerns over religious autonomy, community representation, and potential impacts on property rights. The ongoing deliberation in the Joint Parliamentary Committee underscores the need for a balanced approach that respects religious sentiments while promoting effective management and equitable practices.

Ultimately the future of waqf management will depend on finding a harmonious middle ground that upholds constitutional principles, preserves the sanctity of waqf, and ensures that this institution continues to serve society's welfare inclusively and transparently.

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