Striking a Balance Between Governance and Community Interests

The Waqf Act, first passed in 1994 and amended in 1995 and 2013 became an essential instrument for land acquiring by the Waqf Board in India. The amendments, particularly in 2013 gave the Boards almost unlimited power, which resulted in significant controversies.

Right before the Lok Sabha elections of March 2014, 123 properties in Delhi were given to Delhi Waqf Board by Congress led UPA government, which were re-acquired after a 6 year long legal battle.  Trailing this incident, the Tamil Nadu Waqf Board declared 6 villages as Waqf properties, with one home to the 1500 year old Sundareswarar temple.

-In simple terms, this black law became a tool in acquiring thousands of acres of hindu land in the name of Muslim charity.- To understand the implications and how the 2024 amendment addresses them, we must turn the pages of history and draw a comparative analysis of land acquisition practices by other religious bodies and analyse the current challenges.

Historical Background of the Waqf Act

The origin of the Act can be traced back to the practices of Muhammad Ghori in the Sultanate era of endowing villages to the Jama Masjid of Multan. The Mussalman Waqf Act of 1923 first indicates its attempt to regulate it. After the partition, properties owned by Hindus in Pakistan were seized by the newly formed Muslim Government, while properties left behind by Muslim migrants to Pakistan were handed to the Waqf Board, setting foundation for the 1994 Waqf Act.

Though aimed at regulating and managing Waqf properties in India, the amendment in the subsequent year tipped the balance by giving Waqf Board sweeping authority over property matter, resulting in widespread criticism and land disputes.

-As per the Waqf Management System of India, a total 8,54,509 properties are with Waqf Boards, spread over more than eight lakh acres of land. You will be surprised to know that after the Army and Railways, most of the land is with the Waqf Boards.-

Land Acquisition by Churches and Gurudwaras

Land acquisition by religious institutions is not just limited to the Waqf Board. The Catholic Church of India, for example, holds vast land in the country, estimated at 7 crore hectares, second only to the Indian government. This acquisition is largely due to the Indian Churches Act of 1927, enacted during British colonial rule, which enabled the Church to acquire land at discounted rates. The properties included schools, universities and charitable institutions, though some acquisitions remain under legal scrutiny, reflecting the dynamic interplay between colonial laws and post independence land reforms.

Similarly, the Sikh Gurdwara Act of 1925, which emerged from the Gurdwara Reform Movement of 1920s, placed Sikh gurudwaras under the control of the popularly elected Sikh board, the Shiromani Gurdwara Prabandhak Committee (SGPC). The Act allowed the Sikh community to manage gurudwaras and their properties autonomously, ensuring proper religious use and management of the land.

Hindu temple land acquisition: Regulatory challenges

In stark contrast to the autonomy given to Waqf properties and the Catholic Church, Hindu temples face heavy regulatory constraints. Under the Hindu Religious  and Charitable Endowments Act, Hindu temples and religious sites are placed under government control, limiting their autonomy and often leading to mismanagement. Critics argue that the secular policies initiated under Jawahar Lal Nehru disproportionately affected Hindu institutions. Unlike the autonomy granted to Waqf Boards and the Catholic Church, Hindu temple assets are frequent subject to State oversight leading to acquisitions of neglect and misappropriation of temple resources.

Issues with the Waqf Act: Section 40 and Property Disputes

Section 40 of the Waqf Act, 1995, grants Waqf boards sweeping authority to declare any property as Waqf land, a power that has led to widespread misuse. There are numerous examples of disputed properties, such as the Bengaluru Eidgah ground, claimed as waqf property from the 1850s, and the Surat Municipal Corporation building, claimed due to its historical use as a 'sarai' during the Mughal era. Kolkata's Tollygunge Club, Royal Calcutta Golf Club, and ITC Windsor Hotel in Bengaluru are all on waqf land. This section has also sparked concerns regarding the appointment of mutawwalis (property managers), with frequent disputes over the legitimacy of such appointments.

The irrevocability of Waqf status, once declared, opened gates to various disputes and claims with little room for negotiation or resolution of disputes. It is to be noted that even countries dictated by Muslim laws don’t vest such powers with the Waqf Board, making India’s framework an outlier.

New Bill and Proposed Changes 

To address the growing number of disputes and controversies, the newly introduced bill focuses to tackle these problems by repealing the controversial sections altogether. The bill aims to tackle issues of encroachment, mismanagement and ownership disputes, with over 40,000 cases pending in Waqf tribunals. The changes include:

1. Eligibility to Declare Waqf: The amendment stipulates that only individuals who have practiced Islam for at least five years and are lawful owners of the property can create a waqf. This change abolishes the previous concept of "waqf by user," which allowed properties to be deemed waqf based on prolonged usage, even without formal documentation.

2. Role of Collectors: The responsibility for surveying waqf properties has shifted from Survey Commissioners to district collectors. Collectors will now have the authority to determine the status of properties claimed as waqf, and they must submit reports to the state government regarding any disputed properties. Until a determination is made, such properties cannot be treated as waqf.

3. Government Property Identification: The Bill explicitly states that any government property identified or declared as waqf property will not be recognized as such. This provision empowers the government to clarify ownership and prevent the misclassification of government land as waqf.

4. Inclusion of Non-Muslims in Waqf Bodies: The amendment allows for the inclusion of non-Muslim members in the Central Waqf Council and State Waqf Boards. This change is significant as it alters the composition of these bodies, which were previously restricted to Muslims, potentially impacting decision-making processes regarding waqf properties.

5. Centralized Registration System: The Bill mandates the establishment of a centralized portal for the registration and management of waqf properties. All existing waqf properties must be registered on this portal within six months, ensuring better tracking and accountability of waqf assets, including details like income, pending court cases, and the salary of mutawallis (managers of waqf properties).\

The Government, through the amendment, intends to modernise management of Waqf properties, digitalise records, protect women rights, ensure and promote a fair representation within Waqf bodies, potentially benefiting both the government and the public.

Reaction from the Muslim Community

The response to the new bill has been mixed. The All India Muslim Personal Law Board (AIMPLB) has condemned the bill, calling it an intrusion into personal laws and threatening to launch a mass movement in opposition. Conversely, the All India Sufi Sajjadanashin Council, the highest body representing Sufi shrines, has expressed support for the government's proposal, accusing the waqf boards of operating in a "dictatorial" fashion. This divergence of opinion reflects the varied interests within the Muslim community, highlighting the complexity of reforming Waqf legislation.

A Path Forward

The 2024 amendment bill represents a critical attempt to reform the 1994 Act and address longstanding issues of land mismanagement, encroachment and disputes. It will offer a path to more equitable management, which would benefit both the Muslim community and the broader public, ensuring that the Waqf system can continue to function effectively in modern India.