MC Explains: Reforms in The Waqf — challenges, schemes, and calls for accountability

There have been consistent criticisms of the "unfettered" powers granted to Waqf Boards and the mismanagement of their funds.

Thousands of acres of land spread across the country, along with hundreds of buildings and structures of historical significance, collectively constitute what is known as 'Muslim Auqaf'—properties and legacies designated for charitable purposes.

Merriam-Webster dictionary defines Waqf as an "Islamic endowment of property which is to be held in trust and used for a charitable or religious purpose."

As defined under Section 3 of The Waqf Act, 1995 (as amended in 2013), Waqf means the permanent dedication by any person of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable.

To grasp the religious significance of Waqf and its social, economic, and political importance for the Muslim community, reading the definition given on the official website of the Punjab Waqf Board is enough. It states, "A surrender of properties to God, a Waqf deed is irrevocable and perpetual. Waqf is a permanent dedication of movable or immovable properties for religious, pious, or charitable purposes as recognized by Muslim Law. Waqf Institutions deal with the religious, social, and economic life of Muslims. They support not only Mosques and Dargahs but also Schools, Colleges, Hospitals, and Musafirkhanas, which are meant for social welfare."

What are considered as properties of Waqf?

The institution of Waqf in India is 800 years old, originating when Muslim rulers donated extensive lands for charity. According to information available on the dedicated online portal called WAMSI (Waqf Assets Management System of India), there are currently 356,047 registered Waqf Estates, 872,321 immovable properties, and 16,713 movable properties.

Who is responsible for management of Waqf property?

As per provisions of Section 32 of the Waqf Act 1995 general superintendence of all Waqf properties in a State is vested with the State/UT Waqf Boards (SWBs) and the Waqf Board is empowered to manage these Waqf properties.

What is Wakf Act of 1954, 1995 & 2013?

During Jawaharlal Nehru's prime ministership, the Wakf Act of 1954 was enacted to provide an administrative structure for the functioning of Waqf and to enhance its "better administration and supervision." Through this act, Waqf Boards were established with well-defined authorities and powers, including roles and powers for trustees and mutawallis (managers). The most significant powers of the Waqf Board include supervising and, if necessary, removing mutawallis, sanctioning any alienation of Waqf property in accordance with Muslim law, and representing the Waqf in legal proceedings.

The Wakf Act of 1954 was subsequently amended in 1964, 1969, and 1984. Currently, the Waqf in India is governed by the Waqf Act of 1995, which gave it more power and it was further strengthened by the Waqf Amendment Act of 2013. This last amendment introduced stringent measures to curb illegal alienation of Waqf properties and streamline processes for removing encroachments.

What was in the Wakf (Amendment) Bill, 2010?

In 2010, efforts were made to reform the management of Waqf Boards through The Wakf (Amendment) Bill, 2010. According to PRS Legislative Research, the bill aimed to amend the Wakf Act, 1995, by granting the Waqf Council—formerly an advisory body at the central level—powers to issue directives to Waqf Boards responsible for administering Waqfs in each state. The bill also proposed imprisonment for those who occupy Waqf illegally.

Which key schemes are available to the Waqf Board?

The Ministry of Minority Affairs implements the Shahari Waqf Sampatti Vikas Yojana (SWSVY) through the Central Waqf Council (CWC). Under this scheme, interest-free loans are provided to Waqf Institutions/Waqf Boards to undertake economically viable projects on urban Waqf lands, such as commercial complexes, marriage halls, hospitals, and cold storages. During 2016-17 to 2020-21 an amount of Rs.1861.93 lakh was provided towards interest-free loans to various Waqf institutions/Waqf Boards in the country by CWC for the development of 24 projects.

What are the issues Waqf Boards face? 

There have been consistent criticisms of the "unfettered" powers granted to Waqf Boards and the mismanagement of their funds. For instance, Section 40 of the Waqf Act, 1995 (as amended in 2013), the State Waqf Board is empowered to decide any question which arises as to whether a particular property is a Waqf property or not or whether a Waqf is a Sunni Waqf or a Shia Waqf.  The Board, after duly considering such cause as may be shown in pursuance of notice and after making an inquiry as it may deem fit, decides the case. The decision of the Board on a question under the said provision shall, unless revoked or modified by the Tribunal, be final.

Raising questions over this clause prominently, a PIL was filed by lawyer Ashwini Kumar Upadhyay last year in which he stated, "The board has been given the power to decide as to whether a particular property is a Waqf property or not and under section 40, it can question any property belonging to any trust or society and has the power to declare the same as Waqf property. No safeguard has been given to the persons whose properties are being treated as Waqf property by the Waqf Board and even they have no occasion or opportunity to know about the decision, if any, passed by Waqf Board under section 40.”

Another point raised by those favouring reforms and amendments in the Waqf Board's functioning is that the 1995 Act created an unaccountable and all-powerful bureaucratic structure that is anathema to democracy.

Suvrojyoti Gupta, an Associate Professor at Jindal Global Law School, in an article writes, “This Act created the economic and social power of the waqf. It created a mighty bureaucratic colossus in terms of Waqf Board which in principle is similar to the Mughal Sadr. The centralisation and pooling together of waqf resources concentrate enormous wealth in the hands of the community that is not available to any other. From a strict economic point of view, the Waqf Act actually enhances the economic value of the assets by allowing the Waqf Boards to lease, mortgage or even sell waqf property. A property that cannot be alienated or transferred essentially has only a book value but no market value”.

Mismanagement of funds and revenue under Waqf is also a major concern that is highlighted by the members of the Muslim community also. As reported by the Indian Express, BJP leader Shehzad Poonawalla while commenting on the organisation and functioning of the Waqf Boards had said, “Waqf became a medium for 10-15 influential families to establish a new zamindari system. “For a very long time, the Muslim community has demanded transparency and accountability in the system of Waqf Board. Waqf holds the third-largest land ownership. It holds properties worth lakhs of crores, however, its income is even less than Rs. 200 crores… Waqf became a medium for 10-15 influential families to establish a new zamindari system and encroach the land of the Waqf Board.”

In April 2024, the Enforcement Directorate (ED) arrested AAP MLA Amanatullah Khan in a money laundering case related to “illegal recruitment” by the Delhi Waqf Board. It was alleged that Khan had acquired a large amount of money through the illegal recruitment of staff in the Delhi Waqf Board and invested those to purchase immovable assets in the name of his associates. This case highlighted the mismanagement and corruption prevalent in Waqf Boards and called for major reforms.

During British rule, a dispute over a Waqf property reached the Privy Council of London. The four British judges who heard the case termed the Waqf as “a perpetuity of the worst kind” and declared it invalid.

Perhaps, taking into consideration these issues the government is aiming at bringing in a new bill to make necessary amendments in the law governing the Waqf and end its perpetual unfettered authority.