Why Muslim leaders are objecting to new waqf bill

On Thursday, the National Democratic Alliance government tabled a bill in Parliament that proposes big-ticket changes in the law governing Islamic charitable endowments, or “waqf”.

The bill was fiercely opposed by leaders of the INDIA alliance, who said it violated the right to freedom of religion and the freedom to manage religious affairs, among others.

After objections from Opposition leaders, the bill was referred to a joint parliamentary committee for further consultation.

The 44 amendments in the Waqf (Amendment) Bill, 2024, propose to curb the authority of waqf boards, allow greater control by the government, allow non-Muslims to be members of the boards, restrict the donation of properties, and change how waqf tribunals function.

Several Muslim organisations like the All India Muslim Personal Law Board and Jamaat-e-Islami Hind have criticised the bill for seeking to “diminish the autonomy” of waqf boards and for being drafted without consultations with the community.

Scroll spoke to waqf board members and experts to understand the implications of the proposed new regime. While some of them believed the proposed changes bring in much-needed reform, many argued that it infringes on the community’s religious rights and might make Muslim properties vulnerable to disputes. Contrary to government claims, the bill does not increase gender representation in waqf boards, they pointed out.

More government control

A waqf board is supposed to supervise the philanthropic endowments made by citizens – mostly Muslims – for religious reasons. India has 30 waqf boards, each carved out for a state or a Union territory. Together, they control nearly 9 lakh properties across the country.

The bill proposes to give the district collector’s office, and hence the government, greater powers over the boards.

For instance, the collector is tasked to be the referee in any dispute between the government and the waqf board.

If the government suspects that a waqf property actually belongs to the government, the collector – a district magistrate or a divisional commissioner – will investigate the matter and submit a report to the state government.

An amendment in Section 3 of the Act proposes to add that “any Government property identified or declared as waqf property, before or after the commencement of this Act, shall not be deemed to be a waqf property.”

During the investigation by the collector, the property will not be treated as a waqf property. If it turns out to be government property, the collector will change the ownership of the property in revenue records and the waqf board will also “correct” its own records.

Wajeeh Shafiq, former counsel for the Delhi Waqf Board, said he feared that the provision could be misused to take over Muslim properties and religious shrines.

He referred to a legal dispute between the Centre and the Delhi Waqf Board over over 123 properties in the national capital, including mosques, dargahs and graveyards.

In February last year, the Union ministry of urban affairs had announced its decision to take over the 123 properties, after an order from a two-member commission “absolved” the Delhi Waqf Board from all matters related to them. The matter is currently being heard in the Delhi High Court.

“The proposed amendment is to appropriate those waqf properties,” Shafiq said.

He alleged that the amendment also increases the risk of Muslim religious sites being targeted by Hindutva groups, who might claim that these structures are on government land and declare them as disputed sites.

In the earlier regime, it was up to the waqf board to receive and scrutinise applications to register a property as waqf.

But now, a proposed amendment says the board shall forward the application to the collector, who will “inquire the genuineness and validity of the application and correctness of any particulars therein and submit a report to the board.”

If this report finds that “the property, wholly or in part, is in dispute or is a government property,” it will not be registered as a waqf property, “unless the dispute is decided by a competent court”.

SQR Iliyas, the spokesperson for the All India Muslim Personal Law Board, told Scroll that these amendments will allow the government to undermine waqf boards and create disputes over waqf properties.

“The proposed changes could lead to the loss of waqf properties as the bureaucrats would decide the matters as per the will of the government and not in accordance with the law,” he said.

‘Nothing wrong’

But Shadab Shams, the chairman of the Uttarakhand Waqf Board and a leader of Bharatiya Janata Party, is all for “bringing waqf boards closer to the government”.

“There are conflicts between waqf boards and government authorities, with many officials disregarding waqf orders,” Shams said. “There is nothing wrong in empowering district administration officials to resolve disputes over waqf properties. We cannot function independently and we should work in tandem with the policies of the government.”

SMH Zaidi, an independent waqf consultant who served as the chief executive officer of the Madhya Pradesh Waqf Board 14 years ago, also views these amendments positively. “By forwarding the application to the collector, the bill will check one serious problem: one will not be able to register a property belonging to someone else as waqf,” he said.

Zaidi added that the Section 3 amendment will make sure that many graveyards will now be controlled by the government.

“Many graveyards in Indian cities and villages exist on land given by the local government,” he said. “But the waqf board often comes to control these properties and does not regulate the encroachments on it. The government will be able to manage this problem better.”

According to the Waqf Management System of India portal of the Union Ministry of Minority Affairs, most of the immovable properties registered with waqf boards in India are graveyards, more than 1.5 lakh of them.

The portal also states that nearly 7% of the immovable waqfs in the country are encroached.

But Ajit Singh Sodhi, a civil lawyer and the author of A Treatise on Waqf Laws In India, remained sceptical of the benefits of greater government control in the affairs of waqf boards. “Wherever you have the government coming in, especially officials like district magistrates, they make a hash of things,” he said. “Waqf boards can be corrupt but so can government babus.”

The deletion of section 40

One of the most contentious sections in the Waqf Act – especially in Hindutva circles – is Section 40, which allows a board to decide whether a property is waqf property or not.

This decision is final, unless revoked by the Waqf Tribunal.

In an interview with the RSS-linked weekly Organiser in 2022, Vishnu Shankar Jain, the advocate for the Hindu side in the Gyanvapi Masjid and Shahi Idgah Mosque cases, called the section “the biggest unlawful law of waqf”.

The amendment bill proposes to delete this section altogether.

The critics of this provision argue that it allows a waqf board to arbitrarily take over any piece of land, anywhere, if it so wishes.

But Shafiq, former counsel for the Delhi Waqf Board, refuted this interpretation. “The government should conduct empirical research to determine if there has been widespread arbitrary declaration of properties by waqf boards,” he said. “To my knowledge, the Delhi Waqf Board has not declared any property as waqf under Section 40, except for mosques and shrines, which are inherently waqf properties. Any exceptions should not warrant substantial changes to the law.”

Shafiq added that court judgements over the years have clarified that the waqf boards must record their reasons for declaring a property as waqf and arbitrary declarations are not permitted.

Ahmedullah Khan, former dean of law at Osmania University and the author of Commentary on The Law of Waqf in India, told Scroll that Section 40 only applies to disputes over properties registered with the waqf board, and not any property.

Sodhi, who practises in Punjab and Chandigarh, said that in his two decade-long career, he had not come across any case where the Punjab Waqf Board had taken over a property arbitrarily. “Section 40 does give powers to the Waqf board but it is important to note that the tribunal has the last say,” he said.

But Zaidi differed. “The language of Section 40 allows for a lot of mischief,” he said. “There is a problem of waqf boards taking over land arbitrarily. It happens across India.”

Non-Muslims on the waqf board

The amendment bill to the Waqf Act, 1995, makes space for two non-Muslims in the Waqf boards in the states and the Central Waqf Council. It also removes the condition that the chief executive officer of a waqf board has to be a Muslim.

The provision has been sharply criticised by leaders of Muslim organisations and religious leaders.

“The Constitution gives all religions the right to manage their own affairs,” Maulana Khalid Rasheed Farangi Mahali, a Lucknow-based cleric and member of the All India Muslim Personal Law Board told The Indian Express. “Then how can a non-Muslim be kept in waqf bodies?”

MU Siddqui, former chief executive officer of Delhi Waqf Board echoed the view. “Amending the law to mandate appointment of non-Muslims as members in the Waqf board is unacceptable,” he told Scroll.

In 2022, a petition by BJP leader Ashwini Mahajan before the Supreme Court had challenged the Waqf Act’s provision that its CEO must be Muslim. The top court had dismissed the arguments and noted that laws that dealt with Hindu endowments contained similar provisions and only allowed Hindus to be appointed officers in Hindu trusts.

Zaidi and Sodhi, however, did not object to the prospect of non-Muslims on Waqf boards. “But it can create logistical problems,” said Zaidi. “A Muslim CEO is more likely to understand Urdu and Farsi because old property records are drafted in those languages. During litigation, one needs to dig into and understand those records.”

Sodhi said that this amendment seems to presume that a Muslim member on the waqf board is more likely to be corrupt, and that a Hindu or a Sikh member would make things better. “That is not true. All you need on the waqf board are people of good calibre, regardless of faith,” he added.

Experts also rebutted the government claim that the bill will increase gender representation in Waqf boards.

The existing law already provides for two women in the state boards and two women in the Central Waqf Council, they pointed out. The latest amendment does not add or modify any clause for greater gender representation.

“Those who claim that this amendment will introduce gender representation to the boards have probably not read the existing law,” said Zaidi.

A political gesture?

Waqf boards across India are often portrayed as “corrupt” institutions with “unbridled powers”. But scholars like Ahmedullah Khan told Scroll that waqf boards are as corrupt as any other government institution in India.

“Corruption is a social problem in this country,” said Khan. “It is not peculiar to the waqf boards.”

Sodhi agreed. “The amendments should create a structure that prevents Waqf officials from making money on the side,” he said. “Else these changes are meaningless.”

Wajeeh Shafiq pointed out that the waqf does not have as much power as some think. “The appointments by the government significantly limits the functions of the waqf board,” he said, adding that the grants-in-aid provided to the boards require the approval of the finance department, which restricts their ability to make independent decisions or increase their staff.

About the amendments, Shafiq said there was more than what meets the eye. “They appear to be a political gesture rather than a well-considered policy change,” he said.

Zaidi, who largely supports the amendment bill, said it had fallen short of crucial changes. “The illicit powers of the waqf committees, the concentration of power in the hands of bureaucrats, the corruption of the mutawallis or supervisors, these problems have not been addressed at all,” he said. “Either the government does not know about them. Or it wants Muslims to keep fighting amongst themselves.”