“Never will you attain the good [reward] until you spend [in the way of Allah from that which you love, and whatever you spend-indeed, Allah is Knowing of it” (Quran 3:92). The word “Waqf” has its origin in the Arabic word “Waqufa” meaning thereby to detain or to hold or tie up.[1] “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. It includes:
- Waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;
- Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;
- “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
- A waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law;
and “waqif” means any person making such dedication.[2]
To understand it in simple terms, under Islamic law, a Waqf is a form of endowment in which properties are permanently dedicated for certain purposes, such as pious or religious or charitable. It means that the property is now transferred from the waqif’s (the donor’s) personal ownership to Allah and is considered held by Allah. A very important role of waqf clearly prohibits the sale or alternate use of the property beyond its intended religious or charitable purposes. As the property is considered to be held by Allah, so there is no tangible entity to directly overseas and supervise its management, so a mutawalli (caretaker or manager) is appointed by the waqif or a competent authority. The Mutawalli is responsible for the upkeep, administration and proper allocation of the waqf Property, according to the waqif’s wishes. It is a very clear rule that once a property has been declared a waqf, the ownership becomes irrevocable.[3]
The concept of wakfs did not exist in pre-Islamic Arabia and its origin is traced to an utterance of the prophet.[4]
The law of Wakfs and the tradition is said to be developed on an instance, where one of the companions of the Prophet, Umar Ibn Al Khattab on getting lands in Khayber went to the prophet and asked him, O messenger of Allah, I have got land in Khayber and I never obtained a property more precious to me than this, So, what do you advise me O prophet? The prophet replied, if you want, you can bequeath it and give it as charity, provided that it should not be sold, bought, given as a gift or inherited. Umar acted in accordance with the prophet’s directions and gave it a charity for the poor, relatives, slaves, wayfarer, and guests.[5] There are several other instances which would be further discussed in detail. Over the many centuries, Wakf properties have become a backbone to the social religious fabric of Muslim communities. Developing under various rulers including the Mughals. Post independence, the Act of 1954 came into play and many subsequent amendments to it, aimed to regulate these properties. However, certain issues such as encroachment, mismanagement, and legal disputes have erupted and alleged. The proposed bills are introduced in the Lok Sabha by minority affairs minister Kiran Rijiju, which seeks to amend Act of 1995 and rename it Unified Wakf Management, Empowerment, Efficiency and Development Act, 1995. And, also to repeal Mussalman Wakf Act, 1923 with Mussalman Wakf (Repeal) Bill, 2024 [6]
Keywords – Waqf, Mutawalli, Endowment, Auqaf, Detain, Ownership
An in-depth analysis of the evolution
The institution of waqf began at the time of Prophet Muhammad. A Jewish man named Mukhairiq stated in as well that upon his death, Mohammed will get his seven orchards in Medina. The man who made the will passed away in the fourth year of the Hijrah calendar, after his death, the prophet seized the orchards and declared them as a charity waqf.[7]
According to Anas, Abu Talha was the wealthiest man in the city of Medina. He had a palm tree Orchard (Bir Ha’e) which was his most precious possession when the quranic verse was revealed, “you will not attain piety until you spend of that which you love’’. He went to the prophet of Allah and stated that this is the most precious property that I have. I’m giving it away as a charity, wishing goodness and preservation, thus, O prophet of Allah, use it the way you want[8]. [Al Bukhari]
According to Usman, when the prophet arrived in Medina, he was shocked upon the discovery that the city had very little clean drinking water, other than Bi’r Ruma’s water (Ruma well). He asked “who will purchase the well to equally share the water with his fellow Muslims and shall be rewarded with a better well in the garden (of eden)?” After that, I purchased the well with my own money.[9] [ At Tirmidhi]
The concept of Wakfs in India dates back to the Delhi Sultanate With some earliest examples being Mohammed Ghori’s dedication of villages to the Jama Masjid in Multan. The Mussalman Wakf Act of 1923 marked the first effort to regulate Wakfs in India. Post Independence, the Wakf act was first passed by Parliament in 1954. Later, it was replaced by a new act which was the Act of 1995, which gave many more powers to Waqf boards. The accumulation of powers has been accompanied by increase in complaints of encroachment and illegal lease and sale of properties. In 2013, the act was amended, providing absolute and unlimited powers to Wakf boards to claim properties in the name of Muslim charity, the amendments made it clear that the properties could not be put up for sale as neither Mutawalli (custodian) nor the Wakf boards have right to sell a property.[10] Many cases and complaints have piled up over the years, and the wakf bureaucracy has been alleged for inefficacy leading to serious issues like encroachment, ownership disputes, delay in registration services and also mismanagement. Currently there are 40,951 cases that are pending in tribunals, which are nevertheless part of the system. The law has been very much under suspicion and growing public scrutiny after 2013, when complaints started flooding from Muslim intellectuals, women and different sects such as Bohras and OBC Muslims.[11]
The Sachar committee 2006[12] report highly recommended the need for regulating and efficient management of records, inclusion of non-Muslim technical expertise in wakf management and bringing the law under the purview of financial audit. Similarly, the joint parliamentary committee’s report on work presented in Rajya Sabha in March 2008, also recommended re-planning the composition of the wakf board, proposing appointment of a senior officer as CEO of state wakf board and absolute stringent action for unauthorised alienation of the properties, punishment for corrupt Mutawalli and also creating scope for intervention by High Court in some specific cases, computerisation and digitisation of wakf board and adequate representation of the Shia community in the central Wakf Council.[13]
The proposed changes and the issues surrounding the law
The bill seeks to amend Waqf Act, 1995 and also proposes comprehensive amendments in order to improve administration and management of the properties. Clause 3, clarifies the definition of Waqf as Waqf by any person practising Islam for at least five years and having ownership of the property. It further adds definitions for Agah Khani Waqf, Bohra Wakfs, collector, Government Organisation, Government property, et cetera. It changes and shifts the power structure from the board or tribunals to state government. Clause 11 states that now non-Muslim CEOs and members will now be allowed and included in state Waqf board. Proviso clause 22 further establishes that the central government may by order direct the audit of any, work at any time by an auditor appointed by the comptroller and auditor general of India or by any officer designated by the Central government for that purpose. It very clearly mandates the creation of Waqf only through execution of a Waqf deed. It transfers, the powers and functions of survey from survey Commissioner to collector. It makes it mandatory for uploading list of Auqaf on central portal or database. It also streamlines the registration process and mandates a 90-day public notice before mutation of land records as Property.[14]
The bill broadens, the Central Waqf Council and State Waqf Board to include Muslim women, non-Muslim and separate boards for Borah and Agah Khani. It also ensures adequate representation from Shia, Sunni and other underrepresented Muslim communities. The bill removes section 40, thus, limiting the board Authority and control over the property determination and also reduces the board contribution from 7 to 5%. It mandates account filings on a central portal and requires both proceedings to be published. Restructure the tribunals to 2 members and allows appeal to the High Court within 90 days and removes the binding nature of the tribunal in certain areas. The measures also include protection of inheritance rights of women in Waqf alal aulad, properties and omits Waqf by user. Provisions enables removal of Mutawlli affiliated with unlawful associations and also applies the Limitation Act, 1963 by removing section 107.[15]
The bills timing and content have raised questions about the true motivation behind it, and its implications are being heavily scrutinised, not just for some legal consequences, but also for the potential to outrage and inflame social tensions and increase conflicts stemming from Waqf properties, the All-India Muslim Personal Law Board has strongly opposed the proposed amendments and expressed deep concern that the bill could make the properties more prone to the government control. Various politicians from regional and state parties have described this law as a direct attack on the religious rights of Muslims, alleging that the bill undermines the autonomy of the Waqf institutions and aims to marginalise the Muslim community.[16]
Several other issues that have plunged out of this law is; that “once a Waqf, always Waqf’’, principal has led to various disputes such as claims over properties like the Bet Dwarka islands. The Waqf Act, 1995 and its 2013 amendment has been alleged for inefficiency, leading to several issues like mismanagement, encroachment, dispute over property titles, registration delays, and how the tribunal operates. As the decision of the tribunal is binding, hence no further appeal can be made to a higher court, in case a party is not content with the decision of the tribunal. The survey of these properties remain incomplete or unsatisfactory, particularly in states like Gujarat and Uttar Pradesh due to lack of certain level of expertise and coordination with the revenue departments. State Waqf boards have been alleged to miss use section 40 to claim properties causing increased dedication.[17]
Current Status of Waqf Properties in India
In India, there are currently 8,70,000 properties under the control of Waqf board, spanning over 9,40,000 acres with an estimated value of 1.2 lakh crore. There are 3,56,051 estates registered under Waqf board, 8,72,328 immovable properties registered and 16,713 movable properties registered under Waqf board. The board has 3,30,000 digitised records so far.[18]
There are currently 40,951 cases lying pending in tribunals out of which 9,942 cases filed by the Muslim community against the institution of managing Waqf.[19]
Some serious cases that have led to increased debate around the Waqf law are: Thiruchenthurai Village, Tamil Nadu; Bengaluru Eidgah Ground Case; Surat Municipal Corporation Case; Islands in Bet Dwarka; Shiv Shakti Society, Surat.[20]
Conclusion
The mechanism of righteous charity endowments brings together with itself, wealth distribution in an efficient and effective manner. Philanthropy relates to poverty in more than one way. In meeting the long-term objectives of poverty elevation, the perpetual Islamic endowment can be critically important for economies like India, which is the country with the most poor in the world and holds a massive size and amount of Muslim perpetual endowments if governed and utilised effectively, and without corruption, these endowments will prove to be a catalyst for great socio-economic change for the country’s largest religious minority.[21]
[1] (Waqf Management System of India) <https://waqf.gov.in/wakf/wakfestate.html> accessed 4 November 2024
[2] The Waqf Act,1995 Section (3)(r)
[3] Explainer on Waqf Amendment Bill 2024 (2024) Press Information Bureau. Available at: https://pib.gov.in/PressNoteDetails.aspx?NoteId=152139 (Accessed: 04 November 2024).
[4] ‘’Tie up the substance and give away the fruits’’ the Prophet is reported to have said.
[5] Diwan, P. (2021) ‘chapter 17’, in Muslim Law in Modern India. 14th edition. Allahabad Law Agency, p. 279.
[6] Ibid.
[7] The development of Waqf throughout the history of Islam (2022) Ethis Blog – Ethical Crowdfunding. Impact Investing. Effective Charity. Available at: https://ethis.co/blog/the-development-of-waqf-throughout-the-history-of-islam/ (Accessed: 06 November 2024).
[8] Ibid.
[9] Ibid.
[10] Sekhar, – Metla Sudha et al. (no date) Waqf through the ages: How rs 1-lakh crore property owner Board acquires land and what the Govt aims to change, The Economic Times. Available at: https://economictimes.indiatimes.com/news/india/waqf-through-the-ages-how-rs-1-lakh-crore-property-owner-board-acquires-land-and-what-the-govt-aims-to-change/articleshow/112365585.cms?from=mdr (Accessed: 06 November 2024).
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Drishti Judiciary (no date) Waqf amendment bill, 2024, Drishti Judiciary. Available at: https://www.drishtijudiciary.com/current-affairs/waqf-amendment-bill-2024 (Accessed: 08 November 2024).
[15] Ibid.
[16] Ara, I. (2024a) India’s Waqf amendment bill 2024: Controversy, criticism, and community concerns, Frontline. Available at: https://frontline.thehindu.com/social-issues/waqf-bill-amendment-muslim-community-women-law-babri-masjid-bjp/article68524997.ece (Accessed: 08 November 2024).
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Mohammad Abdullah (2020) ‘Islamic endowment (Waqf) in India: Towards poverty reduction of Muslims in the country’, Journal of Research in Emerging Markets, 2(2), pp. 48–60. doi:10.30585/jrems.v2i2.482.
Author: Mohd Umar
Juris Centre 