[REPLUG] Who really benefits from the Waqf (Amendment) Bill?

A fair assessment is needed of the Waqf (Amendment) Bill, 2024, introduced in the Lok Sabha on 8 August, to understand its salient features and to see how these can improve the efficiency and administration of waqf properties or how they harm the cause of ‘one nation, one law’ in the sense that they are at variance with similar laws such as the Bihar Hindu Religious Trusts Act, 1950; the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959; and the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (also applicable to Telangana).

A waqf is different from a ‘trust’. Unlike trust law (except to some extent in the Hanafi sect), the founders of a waqf cannot take any benefits. Also, unlike trusts, a waqf is perpetual, irrevocable and inalienable. Finally, the property put in a trust vests in the trustee but that in a waqf vests in ‘God’.

Waqf is the most explicit expression of philanthropy in Islam and is a mode of redistribution of wealth. The owner of a property dedicates it to God, and its usufruct, for religious or charitable purposes, extends in perpetuity. The Quran does not mention waqf, but that does not mean it has no theological basis. The Quran has at least 20 verses encouraging people to spend their wealth on charity.

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As in other countries, Muslim rulers in India too generously created auqaf for the maintenance of mosques, madrasas, orphanages, graveyards and so on. As regards dealing with mismanagement of waqf properties, there are historical records that Alauddin Khilji (1296-1316) punished corrupt mutawallis (managers of waqf property).

In Akbar’s time, the services of several qazis (judges) were terminated for accepting bribes in auqaf matters.

The Waqf (Amendment) Bill, 2024 is ostensibly an attempt to deal with alleged corrupt practices of the country’s Waqf Boards, but a close reading reveals several problematic provisions that may destroy waqf administration, and make it practically impossible to reclaim waqf properties where there is government encroachment.

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A false and motivated narrative has been created that the Waqf Board can simply declare any property as waqf. Nothing can be farther from the truth. Waqf properties are all private properties dedicated to charity.

The amendments have some positive features. Section 3A says only a lawful owner can create waqf. This is exactly what Islam also mandates. Section 3(r)(iv) has inserted the words ‘maintenance of widows, divorced women and orphans’, which is good, but these purposes were already covered by the expression ‘welfare and other such purposes recognised by Muslim law’.

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Although the Waqf Acts of 1954 and 1995 permitted only Muslims to create auqaf, the 2013 amendment removed this unjustified restriction. The 2024 Bill has revived the earlier restriction by deleting Section 104 and making it more stringent by insisting that only a person who has been a Muslim for five years can create a waqf. This violates the ownership rights of non-Muslims, as they are free to do what they want with their properties.

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Abolition of ‘waqf by user’

The new Bill proposes to abolish ‘waqf by user’. This provision goes against even the Babri Masjid judgment in M. Siddiq (2019), which categorically recognised the concept of waqf by user when the court observed that “our jurisprudence recognises the principle of waqf by user even absent an express deed of dedication or declaration. Whether or not properties are waqf property by long use is a matter of evidence.”

Most old graveyards are waqf by user and may not have waqf deeds. The concept of ‘immemorial user’ is recognised under British common law and under Hindu endowment laws. Waqf by user was allowed by the Waqf Act of Bengal, 1934 and Bihar, 1947, by the Uttar Pradesh Muslim Waqfs Act, 1960, and by the (Central) Waqf Act of 1954.

Waqf tribunals have been needlessly weakened. It is not clear why the government has such distrust of tribunals when all tribunal members are appointed by it. […] A bogey was deliberately created about the absolute finality of a waqf tribunal’s decisions.

But the decision of the Hindu Endowment Tribunal in Telangana and Andhra Pradesh under Section 85(3) is final. In Tamil Nadu, decisions by the Joint Commissioner of Endowments are final under Section 79A (3). Under the 1995 Waqf law, the High Court itself can transfer a case to itself, and any aggrieved party also has the right to challenge a tribunal’s decisions in the High Court.

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Also, while Hindu endowments are governed by state acts, a central law has governed auqaf since 1954 even though land is a state subject. The new Bill denies states even the power to frame waqf rules.

Finally, we come to family waqf. Islam considers anything spent on one’s family the best expenditure. Family waqf has been used to overcome problems of Islamic inheritance laws such as allowing grandfathers to make a waqf of a third of their property in favour of orphaned grandchildren.

Several Muslim countries abolished family waqf or restricted it to just two generations. Had the Waqf Bill abolished family waqf or restricted it to two generations, it would have been a big-ticket reform. Instead the Bill proposes that family waqf shall not result in denial of inheritance rights to heirs, including women heirs.

This is welcome to the extent that a Muslim can now create a family waqf for only a third of his property if he is excluding his heirs and he cannot altogether exclude female heirs. But the problem is that if he gives even a token benefit to female heirs, much less than they are otherwise entitled to under Muslim laws of inheritance, such a family waqf would still be valid.

The other problem again is that similar restrictions do not exist on the testamentary powers of non-Muslims. A Hindu, for instance, under the Hindu Succession Act, 1955, can give away his entire property to a son to the exclusion of other heirs, including female heirs.

Waqf is an integral part of a Muslim’s life and, therefore, part of his freedom of religion. The entire institution of waqf cannot be made vulnerable due to the corruption and mismanagement of some managers. Is there no corruption in the government itself?

(Faizan Mustafa is a constitutional law expert. The views expressed are personal. A longer version of this piece originally appeared in Frontline)