Waqf Property and Rights of Muslims in India 1995 law best..

Introduction

Waqf, an essential institution in Islamic law, plays a significant role in the socio-economic and religious lives of Muslims. In India, Waqf properties are deeply rooted in the historical, cultural, and legal framework of the country. The concept of Waqf refers to the dedication of a property by a Muslim for religious, charitable, or philanthropic purposes, ensuring its perpetual use for the benefit of the community. Over the centuries, Waqf institutions have contributed significantly to the development of educational, healthcare, and social welfare structures in India.

However, despite their importance, Waqf properties in India face numerous challenges related to management, encroachments, and legal ambiguities. This article explores the concept of Waqf property, its historical background, legal framework, and the rights of Muslims concerning Waqf properties in India.

Waqf: Origin

The word waqf and auqaf are derived from the Arabic waqafa which means causing a thing to stop or stand still. The property that has been waqf(ed) can never again reconvert ownership by inheritance, sale or takeover. Waqf is the permanent dedication by any person, of any movable or immovable property for any pious, religious or charitable purposes, sanctioned by the Islamic law.

Waqf is perpetual, inalienable and irrevocable in nature. It is a unique institution established by Islam, the evidence of which is not found prior to Islam. Historically, wherever Muslim communities were established waqf became a logical creation. Consequently, with the advancement of Muslims in India, a large number of auqaf were created.

Historical Background of Waqf in India

The institution of Waqf in India dates back to the early Islamic rulers who introduced it as a means of social welfare. The Delhi Sultanate (1206-1526) and the Mughal Empire (1526-1857) witnessed extensive endowments in the form of mosques, madrasas, hospitals, and inns. Prominent rulers actively supported Waqf institutions, ensuring their effective administration and utilisation.

With time, waqf institution started playing an important role in the religious, social, cultural, economic, and political aspects of Islamic society. The waqf endowments supplemented the governments in fulfilment of its obligations towards the provisions of public good. Funds derived from Auqaf were used for places of worship, schools, hospitals and in uplifting poor and needy.

During British rule, the administration of Waqf properties became increasingly complex due to legal interventions and policies that affected their autonomy. The British introduced the Waqf Act of 1861 to regulate and administer Waqf properties, but it failed to provide adequate protection against encroachments and mismanagement.

Presently, Auqaf in India apart from agricultural, commercial and residential properties include functional/non-functional mosques, Darghas, Khanqahas, Maqbaras, Ashoorkhanas, Qabristans, Idghas, Imambaras, etc. Sachar Committee Report (Social, Economic and Educational Status of Muslim Community of India, 2006), estimated that there are more than 4.9 lakh registered auqaf in India and the total area under these properties is estimated at about six lakh acres.

However, the estimates under the Sachar Committee Report (2006) were incomplete as it contains data only from 17 States/Union Territories only. The Waqf Management System of India (WAMSI), an e-governance initiative under the aegis of Ministry of Minority Affairs, Government of India in its monthly progress report on digitalisation of Waqf records declares the number of registered auqaf as 333391 by 2018 and is continuing.

According to the Ministry of Minority Affairs, India has the largest waqf holding in the world. As of September 2024, India has 8.7 lakh registered immovable waqf properties. The Sachar Committee estimated that the value of waqf properties stands at Rs 1.2 lakh crore. As per the 2014 Standing Committee on Social Justice and empowerment, most of the states had not completed the survey of waqf properties.

Out of all the registered immovable waqf properties, the status of 50 percent is unknown, around 7 percent are encroached, 2 percent are under litigation. More than 50 percent of all the Waqf properties are: (a) graveyards- 17 percent, (b) agricultural land- 16 percent, (c) mosques- 14 percent, and (d) shops- 13 percent. States with the highest share include: (1) Uttar Pradesh – 27 percent, (2) West Bengal – 9 percent, and (3) Punjab – 9 percent.

Waqf In Independent India: Legal Framework

Indian Muslims as a religiously identified community had a strong political presence in colonial India. However with partition and migration, the scenario changed significantly. For the protection of waqf properties and places of worship, Muslims demanded that a law should be introduced to this effect. For the better administration of waqf properties in the country, Government of India passed the Wakf Act, 1954. Before it was repealed and replaced by the Waqf Act 1995.

The Wakf Act 1954 was amended in 1959, 1964, 1969 and 1984. Presently, waqf administration in India is governed by the Waqf Act, 1995 which was amended by the Waqf (Amendment) Act, 2013. From 1810 to 2017 as many as 24 enactments that applied to auqaf were enacted. Most of them were repealed. Currently, four waqf legislations are in force in India:

Mussalman Wakf (Validating) Act, 6 of 1913: In the wake of Privy Councils’ judgment in Abul Fatah Mohamed’s Case (1894), the Mussalman Wakf Validating Act, 1913 validated waqf alal aulad in India. In 1930 the Act was amended to give it retrospective effect.

The Dargah Khwaja Saheb Act, 36 of 1955: For the administration of Dargah of Ajmer, the Dargah Khwaja Saheb Act, 1955 was passed.

Jammu and Kashmir Waqf Act, 11 of 1978: Given to the constitutional status of Jammu and Kashmir, it has a separate Waqf Act.

Waqf Act, 43 of 1995 as amended by the Waqf (Amendment) Act, 27 of 2013: In rest of the India, auqaf is governed by the Waqf Act 1995 as amended by the Waqf (Amendment) Act, 2013.

The condition of auqaf, on the eve of Independence was highly vulnerable. Except for few States, the Mussahnan Wakf Act, 1923 governed auqaf in the rest of the country. Many Mutawallis and other persons involved in the affairs of auqaf, migrated to Pakistan. Thus many waqf properties were illegally occupied by displaced or unauthorised persons in the absence of caretakers.

The consistent efforts of S M Ahmad Kazmi- Member of Parliament, helped in bringing to the government’s notice the pathetic condition of auqaf. As the President of the Anjuman Himayat-e lslam Punjab, he helped a survey to be conducted privately of illegally occupied waqf properties in the Punjab. In this endeavour much valuable help came from the Idar-e Islami and the Jamait-ul-Ulema-I-Hind. The President of the later, Maulana Hafizur Rahman was keenly interested in the welfare of auqaf. The guiding spirit behind all these efforts was Maulana Abul Kalam Azad. Consequently, the government was convinced of the immediate need of a regulating legislation concerning auqaf. In 1952, Kazmi moved the Private Bill which ultimately became the Wakf Act in 1954.

The Wakf Act, 1954 became the first legislation to provide for the establishment of Waqf Boards in all States. Before this Act, the States of Bengal (1934), UP (1936), Delhi (1943) and Bihar (1947) had established Waqf Boards which ceased after the adoption of Act of 1995.

The Waqf Amendment Act, 1984 reduced the status of Board and a Waqf Commissioner was given overriding powers. This Act was opposed and rejected by Muslims. It was repealed by the Waqf Act, 1995.

The Waqf Act of 1995 is a comprehensive legislation aimed at improving the management and administration of Waqf properties. Some of the key provisions of the Act include:

Establishment of Waqf Boards: The Act mandated the creation of State Waqf Boards to oversee the administration of Waqf properties within their jurisdictions.

Survey of Waqf Properties: Regular surveys to identify, record, and protect Waqf properties from encroachments.

Powers of Waqf Boards: The Boards were given authority to take legal action against unauthorised occupation and mismanagement.

Registration of Waqf Properties: Mandatory registration to ensure proper documentation and protection.

Management and Utilisation: Guidelines for the appropriate utilisation of Waqf assets to serve the intended beneficiaries.

Rights of Muslims and Waqf Properties

Muslims in India have specific rights concerning Waqf properties, primarily aimed at ensuring their religious and social welfare. These rights include:

Right to Benefit from Waqf: The primary objective of Waqf is to serve the community by providing services such as education, healthcare, and social welfare. Muslims have the right to benefit from these services as per the Waqf deed’s provisions.

Right to Protection: Muslim citizens and organisations have the right to demand protection of Waqf properties from encroachers and mismanagement.

Right to Participation: Muslims have the right to participate in the management and administration of Waqf properties through involvement in Waqf Boards and local committees.

Right to Seek Legal Remedy: In cases of mismanagement or encroachments, Muslims can approach courts to seek redress and restoration of Waqf properties.

Right to Religious Practice: Waqf properties, especially mosques and religious institutions, are safeguarded to ensure the uninterrupted practice of religious duties and customs.

Challenges Facing Waqf Properties in India

Despite legal provisions, issues related to the implementation and enforcement of the Act remained prevalent. Waqf properties in India face numerous challenges that hinder their effective utilisation. Some of the major challenges include:

Encroachments and Illegal Occupation: Waqf lands are often encroached upon by private individuals, businesses, and even government agencies, leading to significant losses.

Mismanagement and Corruption: Inefficient management, lack of transparency, and corruption within Waqf Boards contribute to the improper utilisation of Waqf assets.

Lack of Awareness: Many beneficiaries are unaware of their rights concerning Waqf properties, resulting in under-utilisation.

Political Interference: Waqf Boards often face undue political influence, affecting their ability to function independently and efficiently.

Legal Complications: Disputes over ownership, unclear documentation, and lengthy legal proceedings further complicate the management of Waqf properties.

Efforts for the Protection and Development of Waqf Properties

In recent years, various initiatives have been undertaken to protect and develop Waqf properties for the benefit of the Muslim community. Some of these initiatives include:

Digitalisation of Waqf Records: Efforts to digitise Waqf property records aim to enhance transparency and accessibility.

Judicial Interventions: The judiciary has played a crucial role in protecting Waqf properties through landmark judgments and directives to state governments.

Government Schemes: Various government schemes and financial allocations have been introduced to develop Waqf properties for socio-economic upliftment.

Community Involvement: Increased participation of local communities in the management of Waqf assets ensures better accountability and utilisation.

Contemporary Discourse

In August 2024, the Parliament of India introduced the Waqf (Amendment) Bill, 2024, with the aim to reform the management and administration of Waqf properties in the country. The Bill proposed important changes to the existing Waqf Act, 1995, that includes:

Redefinition of Waqf Declaration: Only citizens practicing Islam for at least five years can declare a Waqf, ensuring that the declarant owns and possess the property in question. Logic behind such a criteria is not made clear yet.

Elimination of ‘Waqf by User’: The Bill further seeks to remove the concept of Waqf by long-term use, aiming to prevent disputes arising from properties being claimed as Waqf without formal declaration.

Survey Responsibilities: The role of surveying Waqf properties is proposed to be assigned to the District Collector, replacing the previous provision involving Survey Commissioners. Collector will determine ownership of waqf properties and if any property is found a government’s, its waqf character will be ceased.

Altering Representation: Under the current proposed Amendments, the composition of the Central Waqf Council and State Waqf Boards is to be altered to include Muslim women and also non-Muslims claiming to promote diversity and inclusivity. This altercation can create room for these bodies to majorly comprise of non-Muslim members. Similar institutions governing Hindu and Sikh endowments primarily comprise of members from their respective religions.

The proposed Bill provides for direct appeal to High Courts, thus, revoking the finality of Waqf Tribunals decisions. The Bill also proposes to remove the expert in Muslim law from Waqf Tribunals which may adversely affect redressal of waqf-related disputes.

Specialised Boards: The development of separate Waqf Boards for communities such as the Bohras and Aghakhanis is also proposed with aim to address their unique needs.

The Bill after being examined by the 31-Member Joint Parliamentary Committee (JPC) submitted its Report to the House Speaker on January 30, 2025 to be discussed in Parliament in the Budget Session 2025. The Committee comprised of 21 members from the Lower House (Lok Sabha) and 10 from the Upper House (Rajya Sabha). The JPC was accused of removing the dissenting arguments from the report.

The JPC has been tasked to gather diverse perspectives by engage with various stakeholders, including representatives from different Waqf Boards and Muslim organisations. To ensure a comprehensive review, public submissions from citizens, NGOs, and experts are also invited.

Meanwhile, before the Committee submits its report, the discourse over the Waqf (Amendment) Bill, 2024, is a focal point in India’s political landscape, reflecting broader discussions about religious autonomy, property rights, and governance.

The political discourse surrounding the Bill has been intense. Proponents argue that the amendments will enhance transparency, prevent unauthorised claims, and modernise Waqf property management. However, critics are apprehensive of the Amendments and express concerns that the proposed law could centralise power, potentially marginalising Muslim community and altering the traditional autonomy of Waqf institution.

Conclusion

Waqf properties in India hold immense potential for the socio-economic development of the Muslim community. However, their effective utilisation requires concerted efforts from the government, judiciary, and the community. Strengthening the legal framework, enhancing awareness, and ensuring transparent management practices are essential to safeguarding Waqf assets.

Waqf properties represent a crucial aspect of the socio-economic and cultural framework of the Muslim community in India. However, the historical neglect, encroachments, and mismanagement have limited their potential to uplift a community that has long been grappling with socio-economic challenges. Any legislative change, including the Waqf (Amendment) Bill, 2024, must prioritise the interests and welfare of the Muslim community.

The law should be designed to protect the autonomy and sanctity of Waqf institutions while ensuring transparency and accountability in their administration. Policymakers must recognise the socio-economic backwardness of the Muslim community and take measures that empower them rather than exacerbate their marginalisation. The inclusion of diverse voices, particularly from within the Muslim community, in decision-making processes is crucial to making the reforms truly effective.

By safeguarding Waqf properties and ensuring their proper utilisation for education, healthcare, and social welfare, the government can create opportunities for the community’s upliftment. Strengthening the Waqf system is not merely an administrative task; it is a commitment to justice and equity, ensuring that this historic institution continues to serve its noble purpose in modern times.