The Uses and Abuses of the Waqf Act

IMAGINE RESIDING IN a village with a 1,500-year-old temple and discovering one day that the entire land has been claimed as a waqf property. That is exactly what residents of Tiruchendurai village in Tiruchirappalli district of Tamil Nadu discovered in 2022. A waqf is a Muslim religious or charitable endowment. Under existing law, a waqf board can declare a property to be waqf and the only recourse for an affected person is to approach the board of a waqf tribunal. There are many other cases, similar to the one in Tiruchendurai: a hotel in Telangana, a temple in Delhi, and many more, these disputes span the length and breadth of India.

Ordinarily such disputes end up in court where judicial proce­dures determine ownership. But under the Waqf Act, 1995, waqf boards have ample power to declare a property waqf and there is precious little an affected person can do. In recent years, courts have intervened to put an end to this mischief but these are only selective instances where an affected person had the will and the resources to pursue legal remedies.

All this may come to an end soon. With the submission of the report of the Joint Committee on the Waqf (Amendment) Bill, 2024, the stage has been set for the passage of the Bill in Parlia­ment. Under the chairmanship of Jagdambika Pal, the committee examined the Bill referred to it last year. The 944-page report of the committee has recommended changes to the Waqf Act. The Bill proposed by the committee does not propose a new Waqf Act but makes suggestions to improve the 1995 law.

Among the scores of amendments to the 1995 Act, which include changes in the appointment of waqf board members and functionaries, caretakers (mutawallis) and the manner in which waqf lands are to be surveyed, three key amendments stand out. These were at the root of the problems and abuses of the kind seen in Tiruchen­durai. First, the committee’s Bill does away with the waqf as a user concept outlined in Section 3(r)(i) of the 1995 Act. The committee noted that waqf by user is a situation where the declaration of a property as a waqf has not been done through a formal declara­tion but continues because it has been used for pious, religious or charitable purposes for a long time. This has been subject to abuse over time. Private and government properties alike have been converted into waqf in a dubious manner. The committee called for data from all states and Union territories and in 25 out of 32 states/UTs it was found that a total of 5,973 government prop­erties had been declared as waqf properties. It beats imagination that government property in a secular country can be diverted for expressly religious purposes. Even archaeological monuments, under the protection of the Archaeological Survey of India (ASI) have been claimed as waqf properties. The committee was told that there are 280 such properties. This is set to end as the com­mittee has recommended the inclusion of a section to tackle this menace. Section 3A(1) in the committee’s Bill says that no person shall create a waqf unless he is the lawful owner of the property in question.

Two other potent sources of trouble in the 1995 Act, Section 40 and Section 104, have been recommended for omission in the committee’s Bill. Section 40 gives vast and overriding powers to a waqf board to declare a property as waqf. The decision of the board, according to Section 40(2), is final unless it is set aside by a waqf tribunal. Section 104 of the 1995 Act enables any person who does not profess Islam to support a waqf in case he wants to dedicate property for a mosque, idgah, a Muslim graveyard or a musafirkhana. The 1954 Act did not have such an explicit provision for dedication of property to a waqf on the part of a non-Muslim.

It is not surprising that the proposed repealing of these three features of the 1995 Act has attracted the ire of Opposition mem­bers of the committee. All of them opposed it but on different grounds. For example, if Section 40 of the 1995 Act is removed, it will rob a waqf board of “all” its powers and is thus unjust and discriminatory. Similarly, in the case of Section 104 of the original Act, the ability of non-Muslims to dedicate property to a waqf is a recognised feature of Islamic law.

The most strident, and detailed, opposition to the proposed Bill to amend the 1995 Act was made by Asaduddin Owaisi, the MP from Hyderabad who was a member of the committee. His rea­sons for opposing the Bill, almost totally, are worth noting. In his dissenting note, Owaisi said, “The deletion of this concept from the definition would undermine the legal protection afforded to these properties, as ‘waqf by user’ serves as a rule of evidence to establish the existence of a waqf where documentary proof is lost or destroyed, a concept well-entrenched in both Muslim and Hindu endowment law.” He went on to add, “It is well-settled [in] law that long use for religious purposes as well as oral dedications of property are recognised as a valid ground for a property being considered a religious endowment under Hindu Law.”

This criticism, however, is erroneous. In the text of the Waqf (Amendment) Bill as reported by the committee, Section 3(e) seeks to allay the fears expressed by Owaisi. This section says: “Provided that the existing waqf by user properties registered on or before the commencement of Waqf (Amendment) Act, 2025, as waqf by user will remain as waqf properties except that the property, wholly or in part, is in dispute or is a government property.” This is clearly a safeguard, one that should put to rest any fears of waqf properties being “snatched away”.

But the most interesting parts of Owaisi’s criticism deal with Section 40 and Section 104 of the 1995 Act. In his dissenting note, he writes (on Section 40): “The omission of Section 40 also reflects the callousness with which the government has drafted this leg­islation.” His substantive point is that power under this section “has been characterised as an absolute power. However, a strict procedure has to be followed.” He noted that the board has to satisfy itself that the person dedicating a property in question actually owns the property. It is not, he says, an arbitrary procedure.

Similarly, on Section 104, he says, “[H]istorically, even before the 2013 amendments, non-Muslims were per­mitted to dedicate property to waqf for specific purposes enumerated under Section 104, a position consistent with Islamic law, which imposes no restric­tions on such dedications as long as the purposes are lawful under the dedica­tor’s own faith.” Finally, he adds, “This progressive evolution of the law has been in line with both Islamic principles and judicial determinations. In view of this, the proposed omission of Section 104 represents a regressive step, undoing decades of progress.”

TWO POINTS ARE worth not­ing in this misguided criticism. Section 40, which gives overrid­ing powers to a waqf board, has been a potent source of mischief over many de­cades. These boards may follow a “pro­cedure” but in reality these are powers that rightly belong to a court and not community organisations as waqf boards are. The very restric­tive procedure to appeal against the verdict of these boards—to a waqf tribunal, with a sharp bar on time limits for appeal—has led to situations where owners discover years later that their properties are waqf properties.

Further, if a waqf board indeed took pains to ascertain that the person making a dedication to a waqf was indeed the owner of the property, then where would be no need to modify the waqf by user concept and add a new section, 3A(1), in the proposed Bill that specifically mentions that no person shall create a waqf unless he is the lawful owner of the property and that he is competent to transfer or dedicate such property. Clearly, the waqf by user concept had been so abused over time that it had to be repealed in the proposed amendment.

Similarly, in the case of Section 104 of the 1995 Act, if it was indeed the case that non-Muslims could endow waqfs even before that Act—as Owaisi explained in detail in his note—what was the need to include Section 104 in the 1995 Act?

The reality is that over time, from the Wakf Act 1954 all the way to the Waqf (Amendment) Act, 2013, the supervision of waqf properties and their superintendence have been cement­ed in the hands of the Muslim community with the state’s role being diminished to the point of a mere permissions office. In contrast, Hindu religious institutions such as temples, mutts and other religious endowments have been under the vice-like grip of governments. In fact, there are governments that have diverted endowments of temples—such as lands and financial resources—for ‘secular’ purposes. This strange, one-sided, sec­ularism has only fuelled an environment where the majority of citizens demand parity in how governments treat different religions. The age of different legal and political yardsticks for different religions is almost over.

It is not surprising that this politicisation was seen in the pro­ceedings of the committee as well. Annexure I of the committee’s report details the record of the clause-by-clause voting on the Bill in the committee. It should surprise no one that the voting was along strictly partisan lines with the Opposition seeking to negate those provisions that it thought went against “Muslim interests”. In the process, even much-needed modernising features like the formal appointment of caretakers, the need for a robust, central­ised, database of properties, and other provisions were also seen through a political lens.

Indian MuslimsJagdambika PalJoint Committee on the Waqflegal issuesMoti MasjidreligionsSupreme Court of IndiaWaqf Act