Waqf Board Amendment Bill: What Are Issues & Controversies

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Tracking Changing Laws Around Waqf Board

By Pradeep Kumar Panda

Bhubaneswar, April 2: The concept of waqf refers to the permanent dedication of movable or immovable property for the purposes enshrined in Islam as pious, religious, or charitable. In India, properties such mosques, idgahs, dargahs, khanqahs, imambaras, and qabristans (graveyards), among others, fall under waqf.

A Waqf property is a permanent donation by a person professing Islam, of any movable or immovable property, for any purpose recognised by the Muslim law as pious, religious or charitable, as per Waqf Act of 1954.

The Waqf Act, of 1995 was enacted to regulate ‘auqaf’ (assets donated and notified as waqf) by a ‘wakif’ — the person who dedicates a property for any purpose recognised by Muslim law as pious, religious or charitable. Later, the said Act was amended in 2013 by the UPA government. A property can become a Waqf by donation through a deed or instrument, or if it has been used for religious or charitable purposes. A non-Muslim can also create a Waqf if he professes Islam and the objective of creating the Waqf has to be Islamic.

Once a property is designated as a waqf, it becomes non-transferable and is detained perpetually as a charitable act towards God, essentially transferring ownership to God. Waqfs can be either public, serving charitable ends, or private, benefiting the property owner’s direct descendants. A survey commissioner conducts a local investigation, which may include summoning witnesses and asking for public documents after which he declares all properties as Waqf under the 1995 Act.

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Central Waqf Council is an Indian statutory body operated by the Government of India under the Waqf Act, a subsection of the Waqf Act, 1995. As of September 2024, India has 8.7 lakh registered immovable waqf properties. As per the Ministry of Minority Affairs, India has the largest waqf holding in the world. The Sachar Committee (2006) estimated the market value of waqf properties at Rs 1.2 lakh crore.

Functions of Waqf Board

Waqfs in India are regulated by the Waqf Act, 1995. A survey commissioner lists all properties declared as Waqf by conducting local investigations, summoning witnesses, and requisitioning public documents. The Waqf is managed by a mutawali, who acts as a supervisor. Unlike trusts established under the Indian Trusts Act, 1882, which can serve broader purposes and be dissolved by the board, Waqfs are specifically for religious and charitable uses and are intended to be perpetual. A Waqf Board has the legal authorisation to acquire and hold property and also to transfer any such property.

The current law allows every state to have a Waqf Board headed by a chairperson, one or two nominees from the state government, Muslim MLAs and MPs, Muslim members of the state Bar Council, recognised scholars of Islamic theology and mutawalis of any waqfs that has an annual income of Rs 1 lakh and above. The Waqf Board has the power to administer the property and take measures for the recovery of lost properties and to sanction any transfer of immovable property of a Waqf through sale, gift, mortgage or lease. The board appoints custodians to ensure the Waqf and its revenue are used for their designated purposes. The Central Waqf Council (CWC), established in 1964, oversees and advises state-level Waqf Boards across India.

Issues With The Waqf Board

Powers of Board: Waqf Board cannot claim property unless the land that is recorded in the revenue department’s records before Partition. The Board has to prove that those lands are actually Waqf property.

Section 40: As per 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 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.

No Judicial Oversight: Waqf tribunal decisions cannot be appealed in higher courts, limiting transparency and accountability in Waqf management.

PIL in Supreme Court: BJP leader Ashwini Upadhay filed a PIL in the Supreme Court challenging the validity of Waqf Act 1995. He sought direction from court to Centre to bring in a uniform code for Trust-Trustees, Charities- Charitable Institutions and Religious Endowments. The Supreme Court in April 2023, refused to entertain Upadhyay’s PIL stating that that the constitutionality of a law passed by Parliament cannot be challenged in the abstract as a mere “academic exercise”.

Incomplete Survey of Waqf Properties: Poor performance by the survey commissioner has caused delays, with survey yet to begin in Gujarat, Uttarakhand, a 2014 survey in Uttar Pradesh.

Waqf Act 1995

The Waqf Act, 1995 was enacted by the government to improve the administration and management of waqf properties. It establishes the Central Waqf Council and State Waqf Boards, distributing powers between Chief Executive Officers and Waqf Boards.

The Act mandates the appointment of executive officers for underperforming waqfs with annual incomes exceeding Rs 5 lakh and regulates judicial proceedings related to waqfs. It oversees the powers, functions, and duties of mutawalis and makes the alienation of waqf property difficult. It also mandates surveys to identify waqf properties and strengthens financial management.

Key provisions include the mandatory registration of all waqfs with the Board, the maintenance of a central register of waqfs, the authority of Waqf Boards to appoint executive officers, the removal of encroachments from waqf properties, the preparation of annual budgets for waqf maintenance, and the maintenance of records and inspection of waqf properties.

Waqf Amendment Bill 2024

The amendment bill seeks to change the name of the Waqf Act, 1995 to the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995. The Waqf (Amendment) Bill proposes significant changes to the Waqf Act, seeking improved efficiency and management of waqf properties.

The objective of the Waqf (Amendment) Bill 2024 is to redress the issues and challenges in regulating and managing Waqf properties. According to the ministry of minority affairs, the main purpose of the amendment bill is to improve the administration and management of waqf properties in India.

It aims to overcome the shortcomings of the previous act and enhance the efficiency of Waqf boards by introducing changes such as renaming the Act, updating the definitions of waqf, improving the registration process, and increasing the role of technology in managing waqf records.

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It also seeks to introduce representation of Muslim women and non-Muslim people in the Waqf boards. The bill also says that any government property identified as waqf will cease to be so. The bill removes the provision empowering the Waqf Board to inquire and determine if a property is waqf.

The bill also allows the central government to make rules regarding registration, publication of accounts of waqf, and publication of proceedings of waqf boards. The Centre can also order an audit of the accounts of waqfs by the CAG or a designated officer. District collectors the authority to determine whether a disputed property constitutes waqf or not. The Bill changes the composition of the Central Waqf Council and Waqf Boards to include non-Muslim members.

Why is Opposition against the bill?

The opposition believes that the bill is “unconstitutional” and “divisive”. Joint Parliamentary Committee neglected the recommendations of the Opposition. The entire exercise is being done in a very unconstitutional manner. All the recommendations which were submitted by most of the JPC members of the opposition parties have not been considered and taken into account. A major concern about the amendment bill is that it undermines the authority of waqf boards by giving district collectors the authority to determine whether a disputed property constitutes waqf or not.

Waqf is managed as per Muslim law. The Bill allows and mandates non-Muslim members in State Waqf Boards and Central Waqf Council. It creates 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. Removing the expert in Muslim law from Waqf Tribunals may affect redressal of waqf-related disputes.

The Bill limits creation of waqf to only people professing Islam for at least five years. The rationale behind such criteria is unclear. This creates a distinction between persons practicing Islam for less than five years, and those doing so for more than five years.

Composition of Waqf Boards in the Act and Bill

Parameter	Waqf Act, 1995	Waqf (Amendment) Bill, 2024
Total members	8-12 Members	Up to 11 members
Nature of appointment	Elected and nominated, all Muslim	All nominated
Change in composition	Elected (1-2 from each) Muslim MPs Muslim MLA/MLCs Muslim Bar Council members Mutawallis	Nominated, can be non-Muslim One chairperson One MP One MLA Two professionals One officer of the state government One member of the Bar Council
Change in composition	Nominated One Muslim professional Two scholars; Shia and Sunni theology One Muslim state government officer	Must be Muslim One Mutawalli One scholar of Islamic theology Two members of Panchayat/Municipality

BJD has decided to oppose Waqf Amendment Bill 2024 as it raises serious concerns over excessive state control, lack of procedural safeguards and ambiguity in dispute resolution. BJD demands that the government reconsider the Bill’s provisions and introduce necessary safeguards to ensure equitable, just and efficient governance of Waqf properties in India.

In keeping with this principle, BJD will strongly oppose the Bill in the Parliament. While the amendments made post-JPC review address some initial concerns, the Bill still falls short in preventing arbitrary classification of Waqf properties and fails to provide a truly independent appellate mechanism.

The sweeping powers granted to the state government in determining Waqf land status create potential for undue interference and that the lack of legal and institutional support for Waqf bodies exposes them to bureaucratic delays and mismanagement.

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