The Indian legal and social landscape is marked by a unique institution: the Waqf . The Waqf system served in India as an instrument for charitable and religious endowments for Muslims, however, recently the system has been brought into question for alleged unfair claims by the Waqf Board and the powers of the Waqf Board. This article aims to provide a clear, accessible understanding of the Waqf system in India, explaining its intricacies for a general audience.

Let’s Define Waqf

Simply put, a Waqf is a permanent dedication of property—whether movable (like money or shares) or immovable (like land or buildings)—for a purpose recognized as pious, religious, or charitable as per the Section 2(r) Waqf Act, 1995. The person making this dedication is known as the “Wakif” (donor), and the dedicated property becomes the “Waqf.” This dedication is irrevocable (irreversible), a crucial distinction from other forms of charity. The property itself is essentially taken out of commerce, its benefits perpetually allocated to the specified cause.

Analogy: Think of it as a perpetual trust (simply, passing down of wealth from generation to generation) which is unlike a typical trust, for it is designed to last indefinitely and can’t be dissolved. The principal (the property) remains intact, while the income or benefits it generates are used for the designated beneficiaries of the property.

Example: A successful entrepreneur dedicates a portion of their commercial property as a Waqf. The rental income derived from this property is then directed to funding a free educational program for underprivileged children in the local community, as clearly outlined in the Waqf deed. This ensures consistent financial support for the educational program, irrespective of the original owner’s personal circumstances or those of their descendants.

Historical Context of Waqf in India

The Waqf system in India has a rich history, tracing its origins to the arrival of Islam in the subcontinent. Over centuries, rulers, nobles, and individuals have established numerous Wakfs for a wide array of purposes:

• Religious Institutions: Mosques, shrines, and burial grounds.
• Educational Pursuits: Schools, colleges, libraries, and research centers.
• Charitable Endeavors: Hospitals, orphanages, and community kitchens.
• Public Welfare Initiatives: Wells, bridges, and public rest areas.

It is widely acknowledged that India holds one of the world’s largest collections of Wakf properties amounting to Rs. 1.2 lakh crore across 9.4 lakh acres of property as reported by the Government, highlighting the significant amount of property it has held in a span of almost 30 years from the date of the enactment of the act which is only third to Armed Forces and Indian Railways, respectively.

It is astonishing to note that there are 3,56,051 Waqf Estates under the Waqf Board with 1,24,735 being in UP.

The Legal Framework: The Waqf Act, 1995 (as amended)

The primary legislation governing Wakfs in India is the Wakf Act of 1995. This Act provides a comprehensive legal framework encompassing:

• Creation and Registration of Waqfs: Defining the legal requirements and procedures for establishing and registering a Waqf.
• Establishment of Waqf Boards: Creating State Waqf Boards as the primary administrative bodies responsible for overseeing Waqfs within their respective states.
• Powers and Functions of Waqf Boards: Delineating the powers and responsibilities of Waqf Boards, including registering Waqfs, supervising their management by “Mutawallis” (managers), and ensuring the appropriate use of Waqf funds.
• Dispute Resolution and Encroachment Matters: Addressing disputes related to Waqf properties and tackling the prevalent issue of encroachments by the Waqf Tribunal.

Example: If a dispute arises concerning the rightful management of a Waqf or if there’s an alleged encroachment on Waqf land, the Waqf Board has the legal authority to intervene and initiate necessary legal actions and the decision of the Waqf Tribunal so created is considered as final with no direct appeal to higher courts. Although appeal through revisional jurisdiction of the High Court under section 89(3).

The Essential Role of Waqf Boards

State Waqf Boards are crucial for the effective functioning of the Waqf system in India. Their key functions include:

• Maintaining Accurate Records: Keeping detailed records of all registered Waqfs within their jurisdiction.
• Supervising Mutawallis: Overseeing the conduct of Mutawallis to ensure they manage Waqf properties in accordance with the Waqf deed and relevant legal provisions.
• Managing Finances Responsibly: Ensuring that Waqf funds are used for the designated purposes and maintaining proper financial records.
• Protecting Waqf Assets: Taking proactive steps to prevent encroachments and protect Waqf properties.

Challenges

Despite its noble goals, the Waqf system in India has faced certain challenges:

Encroachments: 

• Illegal occupation of Waqf land remains a persistent problem, often resulting in prolonged legal battles.
• The Government has mentioned that 994 Waqf properties are alienated or illegal with 734 of them being in Tamil Nadu itself.
• The Government found that from April 2022 to March 2023 194 out of 566 complaints were for illegal transfer and encroachment of waqf land illegally.

Mismanagement: 

• Instances of mismanagement of Waqf funds by Mutawallis or other individuals have been reported.
• The Ministry of Minority Affairs has claimed that it has received multiple complaints of ownership disputes and title possession.
•  In total 54,000 acres of Waqf property was misused and transferred to the private institutions illegally between 2001-12 in the Karnataka Waqf Scam.

Transparency and Accountability Concerns: 

• Concerns have been raised regarding the lack of transparency in the administration of some Waqfs.
• There is little to no judicial oversight over the decisions of the Waqf Tribunal due to absence of direct appeal putting out of the question the principle of further judicial review over the actions of the tribunal. 

Amendments 

The government has introduced The Waqf (Amendment) Bill, 2024 with key features including:

Inclusion of non-Muslims in Board: 

• The Bill provides for the inclusion of two-muslim members along with one member from Shias, Sunnis and Backward Muslim Classes along with two muslim women as members.

Waqf Property Determination and Verification: 

• The Bill removes the provision that gave the Board the power to determine Waqf Property.
• The Bill now deems it necessary to register the Waqf Property with District Collectors for verification purposes.

Tribunal Composition:

• The Bill removes from the tribunal, a person knowledgeable in Muslim law and instead the composition as a current or former Dist. Judge as Chairman and officer of the rank joint secretary to the state government.

Appeals: 

• The Bill now provides for an Appeal to High Court within 90 days of decision by the Tribunal 

Recent Developments

• The right wing BJP MLAs are asking for its repeal (full removal), citing that the erstwhile governments used it for minority appeasement.

• Recently, the ‘caretaker’ Maharashtra BJP Government first granted Rs. 10 Cr. to Waqf Board only to later retract the grant citing technicalities. 

• The protests against the proposed amendments continue against the fears that it’d reduce the Muslim involvement in maintaining the Waqf property while some fear loss of property due to absence of documents

• The opposition is also protesting against the amendment citing religious freedom and ownership of property. 

Note:

• This blog post is for informational purposes only and does not constitute legal advice.
• The specific laws and regulations may vary and are subject to change.
• It is always recommended to consult with a legal professional for personalized guidance on any legal matter.
• The examples provided are illustrative and may not reflect actual case scenarios.

Disclaimer: This blog post is for informational purposes only and should not be considered legal advice. If you are facing a legal issue, consult with a qualified attorney.

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