All you need to know about Waqf and its history in India

From verse of Prophet to Delhi Sultanate’s land allocation for Jama Masjid to Waqf Act of 1995

On 8th August, Union Minister Kiren Rijiju proposed sending the Waqf (Amendment) Bill 2024 to the Joint Parliamentary Committee after tabling the Bill in the Lok Sabha. In a statement, he said, “Constitute a Joint Parliamentary Committee and refer the Bill to it for wider scrutiny. Discuss the Bill extensively, call more stakeholders, and listen to their opinions. Pass this [Bill] to the Committee, and in future we will listen to their suggestion with open heart …”

As the Waqf Act, 1995 is being amended by the Government along with repealing the Mussalman Wakf Act, here is all you need to know about Waqf.

Historical Background of Waqf

Waqf is considered to be one of the significant branches of Islamic jurisprudence. However, the term ‘Waqf’ has no mention in the Holy Book. The concepts seen are connotative in some of the verses. The foundational emergence of the idea can be found in the words and deeds of the Prophet. When Omer sought the advice of the Prophet for the pious use of a piece of land called Sammagh in Khaibar, the Prophet said :  “Tie up the property and devote the usufruct to human beings and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred and the poor in the way of God.”

In short, the Prophet dedicated a piece of land that he acquired in the canton of Khaibar for the use of travellers. Similarly, Abu Baker created a Waqf in favour of his children.

According to the Judicial Committee of the Privy Council also in Vidya Varuthi Thirtha Swamigal Vs. Balusamy Iyer2 (AIR 1922 PC123), Waqf means ‘Tying up of property in the ownership of God, the Almighty and the devotion of the profits for the benefit of human beings’.

The concept of Waqf was introduced in India with the advent of Islamic rule. During that period, Waqf management was very theoretically centralized in nature. The idea of Waqf in India dates back to the Delhi Sultanate when Sultan Muizuddin Sam Ghaor dedicated two villages in favour of the Jama Masjid of Multan and handed its administration to Shaikhul Islam. As Islamic rule flourished, the number of Waqf properties increased.

Travel guides

During that period, Waqf institutions played a vital role in the development of Islamic scholarship and education. In pre-British India, Waqf was also closely linked to conversion and religious as well as cultural appropriation. In his book ‘The Preaching of Islam : A History of the Propagation of the Muslim Faith’, Thomas Arnold portrayed ‘Sufis’ as Islamic ‘missionaries’ among non-Muslims. Historian Muzaffar Alam in his book ‘The Languages of Political Islam : India 1200-1800’ also mentioned that Sufis used to convert Hindus to Islam. Richard Eaton in his work, ‘Approaches to the Study of Conversion to Islam in India’ called this process ‘accretion and reform’, whereby the Sufi Saints would appropriate Hindu/local customs and nominally convert the population to Islam.

Post-Independence and Post Partition of the country

After 1947, the Mussalman Waqf Act, of 1923 was applicable for managing Waqf properties. However, in 1954, the then-Congress Government introduced the Waqf Act, 1954, which centralised the administration of these properties. It also established Waqf Boards with significant powers. However, it raised suspicions about the Government’s intentions, particularly regarding appeasement of one community. The act led to the repealing of several pre-Independence laws and changed the administration of Waqf properties extensively.

In 1984, the Waqf Inquiry Committee submitted a report leading to the Waqf (Amendment) Act which aimed to restructure the Waqf administration and address financial and operational loopholes. However, the Muslim community strongly objected to it, particularly to the powers granted to the Waqf Commissioner and the Act could not be fully enforced.

Later, The Waqf Act 1995 was enacted which consolidated and amended previous laws. It retained major provisions from the 1984 Amendment Act. However, the Muslim community was still against it which led to the formation of a Joint Parliamentary Committee (JPC) to recommend improvements. Based on the JPC’s recommendations, the Waqf (Amendment) Act, 2013 was enacted giving Waqf more powers.

Significant changes in Waqf Legislation during 1954, 1995 and 2013

Definition and Scope of Waqf : Over the years, the definition and scope of Waqf have been changed. Initially, the 1954 Waqf Act expanded the concept to include Waqf by User and Waqf-alal-aulad, allowing properties to be considered Waqf if they were used for religious or charitable purposes or dedicated within a family context, even without formal dedication. However, the 1995 Act enlarged the definition which ensured that the properties remained classified as Waqf even if their usage ceased.

However, it has to be noted that it would remain classified only if greater permanence to Waqf properties was there. A major shift occurred in 2013 when the amendment allowed any person, not just Muslims, to permanently dedicate property as Waqf. This broadened the potential pool of Waqf properties, opening it up to contributions from non-Muslims.

Introduction and Enlargement of Waqf by User : The concept of Waqf by User was first introduced in the 1954 Act. It allowed properties to be considered Waqf based on long-term usage for religious or charitable purposes without formal dedication. It was particularly relevant for public properties like graveyards and mosques. In 1995, the concept was expanded leading to the possibility that Waqf property would remain Waqf even if its usage stopped. The 2013 amendments reinforced the Waqf Board’s authority to determine and enforce this status, solidifying control over such properties.

Judicial Proceedings and Establishment of Waqf Tribunals : Initially, in the 1954 Act, civil courts had the power to decide on the dispute related to Waqf properties. In the 1995 Act, Waqf Tribunals were introduced trans-ferring the power to them. In 2012, tribunals’ powers were expanded and included tenant eviction disputes and other related issues, consolidating the tribunals’ role in managing Waqf properties.

Cost of Survey : In the 1954 Act, the cost of surveying a property was the responsibility of the mutawalli and it was funded by the income of the Waqf property. In 2013, the cost was shifted to the financial burden of the state.

Composition of the Waqf Board : In 1954, the Board membership to Muslims was not limited and members from various backgrounds, including state legislators, Parliament members, and experts in Muslim law, administration, finance, or law were allowed. However, in the 1995 Act and after the 2012 amendments, the Board members were mandatory to be from the Muslim community.

Enlargement of Powers of the Board : The 1954 Act granted the Board extensive powers such as managing Waqf income, appointing and removing mutawallis, and determining the nature of Waqfs. The 1995 Act further enhanced these powers and allowed the Board to claim properties of trusts or societies registered under other laws if deemed Waqf. The 2013 amendments reinforced these powers, making the Board nearly invincible in matters of Waqf property decisions.

The changes proposed in Waqf (Amendment) Bill 2024

The Waqf (Amendment) Bill 2024, which was introduced in Lok Sabha, proposed several major changes to the Waqf Act. One of the most significant is removal of contributions by non-Muslims. It changes the definition of ‘Waqf’, which states that it is the dedication of any movable or immovable property by a person practising Islam for at least five years.

It adds that the creation of Waqf-alal-aulad (An endowment for the family of the donor) shall not result in the denial of inheritance rights of heirs, including women heirs of the donor. The amendment further adds maintenance of widows, divorced women and orphan to the use of proceeds of such dedicated property.

The amendment introduces the position of Collector who would exercise powers some of which were once vested with the Waqf Board. The new Act mandates all registered Waqfs to file details of the Waqf and properties dedicated to the Waqf. The amendment adds a provision to stop the misappropriation of Government land by claiming to be Waqf property. It states that any Government property ‘identified’ or ‘declared’ as Waqf, before or after the amendment, shall not be deemed to be Waqf property. In case of dispute, the Collector will conduct an enquiry.

As per current law, the decision of the Tribunal in case of any dispute regarding Waqf property is final, which can’t be challenged. The amendment changes this, saying that a suit can be constituted within a period of two years from the publication of the list of Waqf properties. Section 40 the Waqf Act, which allows the Board to collect information regarding any property which it has reason to believe to be Waqf property, has been abolished. It further states that two non-Muslilm members will be appointed to the Waqf Board, apart from two women members.

Creation of Waqf without execution of a Waqf deed has been stopped, and the Collector will conduct an enquiry into the genuineness of the application. If it is found to be disputed or Govt. property, registration won’t be done.

(Courtesy : Excerpts from an Article posted on opindia.com; 8.8.2024)

Amendment introduces the position of Collector who would exercise powers some of which were vested with the Waqf Board !