Apr 2, 2025 12:41 IST
First published on: Apr 2, 2025 at 12:41 IST
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Despite widespread discontent, the government has remained determined to pass the Waqf (Amendment) Bill, introducing far-reaching changes in waqf jurisprudence and even renaming the Waqf Act 1995 as the Unified Waqf Management, Empowerment, Efficiency and Development Act 1995. What this new name has to do with the substantive amendments is anyone’s guess. The JPC headed by MP Jagdambika Pal set the confrontational tone that promises to continue during the passing of the Bill in the two Houses, and perhaps thereafter as well.
Waqf law is not new to India, nor indeed to the world of Islam. The concept of waqf goes back to the lifetime of the holy Prophet. In India, over the decades, it has been assiduously chiselled by scholars and legal experts to harmonise the essential conceptual features with the demands of the changing economic conditions of the community. As the minister for minority affairs under Manmohan Singh I attempted to fine-tune the 1995 Act with select amendments in 2013, an aggressive response from certain conservative quarters sought to question the motives; there were allegations of insensitivity in having it passed when most Muslims members were supposedly away from the House for namaz. Much was made of the registration prerequisite for giving jurisdiction to the Waqf Tribunals and one worthy even suggested it was done to interfere with the Babri Masjid litigation. As I look back, I can only reflect on the myopia that afflicted the leaders of the community, not imagining that crying wolf repeatedly would render them vulnerable if the wolf actually attacked. What one should have feared then is exactly what is happening now.
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The definition of waqf, like many such things in Islam, has a religious flavour while also being a response to social conditions of the community. A waqf is property transferred to Allah and the person looking after the property is a mutawalli. This is fundamentally different from a trust where the ownership is split between the beneficial owner and the trustee as legal owner. It is, thus, intrinsically a religious concept protected under Articles 25 and 26 of the Constitution. The unamended Act allows waqf to be formed by (i) declaration, (ii) long-term use (waqf by user), or (iii) endowment for progeny and descendants in line of succession (waqf-alal-aulad).
The Bill states that only a person practising Islam for at least five years may declare a waqf. Who is to judge this? A Muslim is someone who recites the kalima: There is no God but Allah and Mohammed is His messenger. The declaration of faith is all that Islam requires; practice, unlike in Christianity, has nothing to do with faith. It removes the waqf by user concept (properties being used as Waqf properties will remain Waqf even if the user does not exist), although it is conceded that this provision will be applied prospectively. Otherwise, given the huge number of properties used as places of worship and to run various charities, it would have been disastrous. It also adds that waqf-alal-aulad must not result in denial of inheritance rights to the donor’s heirs, including women. This is a contradiction in terms as heirs are, by definition, part of waqf-alal-aulad.
Under the Act, survey of waqf properties by a government-appointed surveyor was an important step for inclusion in the list of waqfs. The functions of the collector came into the picture for ensuring that the waqf property was protected against encroachment. Under the present Bill, transferring the functions of the survey commissioner to the collector or any other officer not below the rank of deputy collector duly nominated by the collector has unnecessarily concentrated all functions in the same person. In addition, the collector is authorised to take decisions about any overlap of waqf claims on government property. This is critical as over the years, many waqf properties were sought to be acquired by the state, as in the case of the 123 properties (mosques and graveyards) inadvertently acquired when large areas of Delhi were acquired for the establishment of the capital city.
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Providing for a broad-based composition of the Central Waqf Council and the State Waqf Boards by ensuring the representation of Muslim women might pass as a step towards beneficial inclusion. However, introducing two non-Muslims goes against the grain of Constitutional provisions and is inconsistent with the prevailing practice regarding institutions of other religions.
There is already a provision for separate Waqf Boards for Sunni and Shia waqfs and thus the intention to establish a separate Board of Auqaf for Bohras and Agakhanis will promote separation and segregation in the Muslim community, possibly weakening the community’s collective voice.
Streamlining the manner of registration of waqfs through a central portal and database may have no negative implications but providing a detailed procedure for mutation as per revenue laws, with due notice to all concerned before recording any property as waqf property, might place a great burden on small waqfs with modest income.
The Bill also seeks to reform the tribunal structure with two members and provides for appeals against the orders of the tribunal to the high court within a specified period of 90 days. This step is, once again, out of line with the idea of tribunals where a so-called technical member is seen as an important contributor. By removing the member with special knowledge of Islamic law, the amendment leaves a conspicuous gap without any reason.
The beneficial steps taken over the years — based on experience and considerable research — will be undone by the omission of Section 107 so as to make the Limitation Act, 1963, applicable to any action under the Act, as well as the omission of Sections 108 and 108A, which relate to the special provisions regarding evacuee waqf properties and the overriding effect given to the amended Act.
There are great possibilities and potential in the waqf institutions to meet the needs of an aspirant Muslim community whilst preserving a unique and significant feature of community life. If it is true that waqfs in India have the largest ownership of land and real estate, the amendments do precious little to enhance the opportunity to develop them for the good of the community and the country, something that previous interventions in the law had done. Be that as it may, one cannot lose sight of social features that are indicators of community life. Zakat, qurbani and waqf are critical indicators of Islam’s preoccupation with charity and human welfare. Ultimately, it is about cultural markers and a way of life. We have, as a nation, celebrated this as unity in diversity but, sadly, the march of uniformity is taking another toll.
The writer is a senior Congress leader and former Union Minister for Minority Affairs
