Waqf in India: Evolution, Laws, Challenges & Waqf (Amendment) Bill, 2024

Introduction

Waqf is basically an Islamic trust in which people or groups of individuals donate their assets for a religious or charitable purpose. The donated assets (usually real estate) are given permanently with the restriction that they cannot be sold or inherited. These assets are meant to provide revenues and serve the purpose of being a welfare mechanism to be run for public welfare or the community, such as educational institutions and hospitals, and helping the needy.

It has a very long history that is extremely complex and influenced by Islamic rulers, British imperialistic policies, and post-independence reforms. The sequence of Waqf developments in India is interlinked with the setting conditions from time to time in the socio-political context and background.

While newer laws and regulations may have entered over some time, aiming to regulate and safeguard Waqf properties, the long-ago essential aspect of the system as being religious and charitable has not been done away with completely. This article traces the history of Waqf in India, its significant administrative adjustments, and the legal framework for the regulation of Waqf properties.

The Concept of Waqf in Islamic Law

It would be relevant to recall some of the fundamentals of Waqf under Islamic law, popularly known as “sharia,” in connection with entering the Indian scenario. A waqf is a perpetual dedication of property or other assets for a purpose or help toward it, typically being religiously or welfare-oriented. Once dedicated as Waqf property, it cannot be sold, gifted, or inherited.

Islamic jurists laid down specific conditions for the validity of Waqf:

● Perpetuity: The donation should be permanent in nature.

● Irreversibility: Once created, a Waqf cannot be reversed.

● Motive: The Waqf must be provided for the welfare of society.

● Administration: A trustee, known as a Mutawali, is basically held liable for managing the Waqf property.

The institution of Waqf developed as a key tool for sustaining religious institutions and promoting public welfare, making it an essential aspect of community service and public welfare.

Historical Evolution of Waqf in India

1. The Arrival of Islamic Rulers in India

The notion of Waqf was introduced, especially by the Delhi Sultanate, in the 13th century. During these times, Waqf became a major institution in India as the rulers and rich people devoted vast areas of land and property to support mosques, madrasas, shrines, and other public welfare facilities.

In ancient India, many mosques, libraries, and educational institutions were constructed with the earnings collected from Waqf properties. Social services were provided without any government subsidy, and thus, this scheme was one of the key contributors to the self-reliance of religious and educational organizations.

2. The Colonial Period and the Impact on Waqf

On the arrival of the British East India Company, the management of the Waqf system slightly changed. The British colonial authorities were ignorant of the Islamic Waqf system and, hence, implemented Western legal rules of governance, which altered the method of managing the Waqf.

The Act of 1863 was the first measure taken to gain control over the religious endowments by the British. This Act basically handed over the administration of Waqf properties to the government, with great emphasis on larger mosques and public trusts. The British authorities were worried about the increasing power of Islamic institutions, and it was their objective to control and even secularize the Waqf properties.

To a large extent, the colonial interference with the administration of Waqf led to conflicts between Muslims and the British authorities as it disrupted the traditional system of management and removed custody of properties from Muslim trustees to colonial administrators.

3. The Mussalman Wakf Validating Act, 1913

The Mussalman Wakf Validating Act of 1913 legitimized the family Waqfs, also popularly known as Waqf al-Aulad. Till then, British laws had almost always made family Waqfs illegal, simply because they went against the English rule of perpetuity. Thus, the act ensured that Muslims could give gifts of lands as Waqf for their future generations and religious or other welfare purposes.

However, there was a limited scope for this Act, which led to the existing malpractices in the mismanagement of Waqf properties as well as encroachments. The absence of a centralized system to supervise the management of Waqf properties throughout India often resulted in differential effectiveness and responsibility of the administration.

Post-Independence Period: Waqf in a New India

1. The Waqf Act, 1954

In the year 1947, immediately after India’s independence, the leaders of the country outlined the need to adopt a more regulated legal framework to manage and protect the Waqf properties. Thus, the Waqf Act of 1954 was released. The Act was the first major instance of the Indian government trying to bring about uniformity in the Waqf administration at the national level. The main characteristics of the 1954 Act consisted of:

● Creation of Waqf Boards in every state to manage and supervise Waqf properties through registration.

● A system of laws for the selection of Mutawallis to oversee the daily operations of Waqf properties.

● Provisions were made for audits and investigations to guarantee the appropriate management of Waqf assets.

● Creation of a Central Waqf Council to provide advisory support and coordinate the activities of the State Waqf Boards.

The aim to make the Waqf properties better could not be achieved by the 1954 Act, by the way, as it failed to clear up some unlawful practices. Such as, they showed mismanagement, bribery, and the absence of data on Waqf properties were the problems. Most properties on Waqf land are not documented; therefore, many cases of unauthorized occupants arise.

2. The Waqf Act, 1995

Recognizing the constraints imposed by the 1954 Act, the Indian Parliament enacted the Waqf Act of 1995 to frame more disciplined laws and order for the better administration of Waqf properties. The core content of the 1995 Waqf Act in India includes:

● Registration of Waqf Properties: Every property that is a Waqf must be officially registered by the state Waqf Boards. The main aim of this exercise was to create a high-quality database of the Waqf assets to drive away acts of fraud and unauthorized seizures.

● Increased Role of State Waqf Boards: The business of the State Waqf Boards was allowed to also include the management of Waqf properties other than just the settling of disputes. The boards were responsible for the implementation of the required surveys of the Waqf properties and keeping their records updated.

● Appointment and Accountability of Mutawallis: The law provided guidelines and urged Mutawallis to carry out the work with the most effective accountability for the trust or Waqf properties. Moreover, Waqf Boards have been allowed to shut out the managers for wrongdoing.

● Creation of Waqf Tribunals: The Waqf courts take care of the setting of conflicts regarding Waqf assets, for example, disputes on encroachment or trespass, irregular administration, or unlawful occupation.

In spite of the enhancements introduced by the 1995 Act, the management of Waqf properties in India still encountered problems such as corruption, mismanagement, and political interference.

3. The Waqf Amendment Act, 2013

The 2013 Waqf Amendment Act was promulgated to overcome the long-standing problems that had remained since the enactment of the 1995 Act. Among other things, this amendment envisaged making the affairs of Waqf, one, more transparent by diluting the complexities in management, and two, more capable of standing on their own. The main modifications of the Act were the following:

● Enhanced Protection Against Encroachment: The amendment prescribed stricter methods to halt the illegal intrusion of Waqf properties. State Waqf Boards were compelled to report encroachments to the government and solve them without any delay.

● Empowerment of Waqf Boards: The amendment granted extra powers to Waqf Boards to manage and protect Waqf properties, including the right to oversee and audit the activities of Mutawallis directly.

The Indian central and state governments have had to take many significant steps towards better management of Waqf properties since the implementation of the 2013 Amendment.

4. Waqf (Amendment) Bill, 2024

The 2024 amendment is the most recent change to the 1995 Waqf Act in India, aimed at improving the management and transparency of Waqf properties by introducing various modifications. Included in the bill are certain important provisions, such as:

● Renaming the Act: The bill proposes renaming the waqf Act to the Unified Waqf Management, Empowerment, Efficiency, and Development Act, which will focus on refined Waqf governance.

● Property Registration and Verification: It needs waqf properties to be registered with the District Collector’s Office for evaluation and validation, with new methods that the owners can use to clarify the ownership of the properties.

● Role of District Collectors: The task of determining whether land is waqf or government land is transferred from the waqf board members to the District Collectors. Their court ruling should be final and must be noted on the official revenue papers.

● Elimination of Waqf by Oral Declaration: The bill requires that a waqf must be created by a lawful owner through a formal deed (waqfnama), eliminating the previous allowance for oral declarations.

● Inclusion of Women and Non-Muslims: Muslim women and non-Muslim members will now be included in the Central Waqf Council and state Waqf Boards. It will have diversity with a representation of shias, sunnis, and bohras.

● Dispute Resolution: The bill gives a legal option to waive the decisions of the Waqf boards in the high courts and thus strengthens the legal options for the resolution of disputes.

These reforms are intended to improve governance, transparency, and the proper use of waqf properties while addressing longstanding issues regarding ownership and dispute resolution.

Challenges in the Management of Waqf Properties

Although there is a strong legal framework and multiple amendments have been made to enhance the management of Waqf properties in India, there are still several challenges that hinder the efficient governance and use of these valuable assets. Here are a few of the main obstacles:

● Encroachment of Waqf Properties: The illicit occupation of Waqf properties forms the main obstruction before the Waqf system in India. Many had suffered at the hands of private parties, government departments, and business entities as their Waqf properties were illegally snatched from them.

● Mismanagement and Corruption: There are widespread allegations of falsification and ineptitude in the management of Waqf properties by Mutawallis and State Waqf Boards. The potential of Waqf properties has not been fully exploited or managed as it should be. Many have resulted in heavy losses. In some cases, Mutawallis has been accused of selling or leasing Waqf properties at very low prices or using funds for other selfish purposes; in other cases, they show negligence in undertaking the upkeep of Waqf properties.

● Incomplete and Outdated Records: One of the key issues hampering the proper administration of Waqf properties is the incomplete and outdated nature of Waqf records. The Waqf Amendment Act of 2013 mandated the digitization of Waqf records to improve transparency and accountability. However, the process of digitizing these records has been slow, and many Waqf Boards still rely on paper records, which are prone to tampering, loss, or forgery. Without accurate and accessible records, it becomes challenging to monitor the use of Waqf properties and prevent encroachments or mismanagement.

● Lack of Coordination Among Authorities: Coordination of Waqf properties requires coordination among various agencies, such as state waqf boards, municipal bodies, and police authorities. There may be confusion and lag in decision-making by the authorities in the settlement of disputes or addressing encroachment, especially if Waqf Boards report enroachments, but concerned authorities take time to act on them. In such cases, the encroachments become permanent.

Conclusion

Some of the problems confronting the waqf properties are encroachment, corruption, and political interference, as well as resource deficiency; although the legal framework for Waqf properties has been changed, many differences still exist between theory and practice.
To address these challenges, the following reforms are called for:

● Unified and transparent laws: Implement unified, standardized and comprehensive laws regarding the management of waqf across all regions transparently. It also helps in the elimination of disparities pertaining to the application of the laws related to waqf in different regions.

● Enforcement: The existing legal framework would need to be enforced strictly. Thus, independent regulatory bodies, or more effectively, existing ones, could be fortified to address the issues of encroachment and unlawful occupation of waqf land.

● Independent Regulatory Authority: Establish an independent waqf authority that is free from political influences and interference. The authority is granted a capacity to make decisions strictly in the best interest of the waqf assets, with assurance that no political influence could undermine its functions.

● Financial Accountability: Institute routine, transparent financial audits on how funds generated from Waqf properties are utilized so that the right use is indeed being made and for the right purposes. This will naturally curb as much corruption and mismanagement.

● Monetization of Waqf Properties: Developing unused waqf properties for commercial and social purposes to generate sustainable incomes from such developments can be a source of monetization of waqf properties. These revenues can also be reinvested into the maintenance of, as well as expansion of, waqf assets.

AUTHOR: Nitin Shakya, First-year Law Student at Faculty of Law, University of Delhi

Link to the Waqf Amendment Bill, 2024: https://prsindia.org/files/bills_acts/bills_parliament/2024/Waqf_(Amendment)_Bill_2024.pdf