Explainer: New Waqf Bill and contentious issues

The Lok Sabha on Wednesday discussed a Bill to amend the 1995 Waqf Act, which regulates the management of Waqf properties in India. The concept came to India during the Mughal rule. Many regulations have existed to manage Waqf properties, currently defined by the 1995 law as “permanent dedications by any person of any movable/immovable property for any purpose recognised by the Muslim law as religious, pious and charitable”.

The Waqf Act of 1954 was the first post-Independence legislation introduced to manage Waqf properties and ensure generated incomes were used for charitable purposes. The law was amended in 1959, 1964, 1969, 1984 and 1995. The new Amendment changes the 1995 law. Under the new Bill, only self-owned resources can be declared as Waqf after ensuring the inheritance rights of women and children. The DC will determine that land being donated by a Muslim is actually in his ownership.

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CONTENTIOUS ISSUES

Who can create Waqf property

The parent law allows anyone — even non-Muslims — to create and declare Waqf properties. The new Bill says only a person who has practised Islam for five years can create and declare a Waqf. It removes non-Muslims from the definition of Waqf.

• Opposition stand:
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  The move is discriminatory, against Article 26 of the Constitution and India’s secular fabric. The Opposition leaders asked if the government will demand a certificate of religion from any other community also?

• Government stand:

  It was the Congress-led UPA government which in 2013 amended the Waqf law to allow non-Muslims to declare Waqf properties even though all Waqf laws allow for only practising Muslims to do so.

Constitution of Central Council, State Boards

As per the parent law, all members of the Central Waqf Council are to be Muslims. The new Bill allows four non-Muslims, 10 Muslims, including two women, two former judges, an advocate, four experts. In the 11-member State Waqf Boards, the 1995 law provides for up to two elected Muslim lawmakers or Bar Council members and at least two women. The 2025 Bill says the state government will nominate members, including two non-Muslims and maximum three non-Muslims. Members should include one each from Shia, Sunni communities. At least two Muslim women are must.

• Opposition and All-India Muslim Personal Law Board’s stand:
  The new Bill seeks to interfere in the religious affairs of Muslims. Even the parent law had provisions to include women.
• Government stand:

  The parent law did not allow any representation to non-Muslims or backward communities, nor was appointing women mandatory. Council and boards are not religious bodies. They are meant to ensure that declared Waqf properties are used for the intended charitable purposes and not squandered or grabbed or lent to private parties. Only Waqif (who declares Waqf) and Mutawalli (who manages Waqf property) are required to be Muslims and the new Bill ensures this.

Waqf by user

The parent law allows properties to be declared Waqf on the basis of their long-term use. If a property is undocumented, it can be declared Waqf by the user simply because someone has used it for years. The new Bill says the omission will apply prospectively. Of 8.72 lakh Waqf properties in India, 4.02 lakh are Waqf by user.

• Opposition stand:

  The move to drop the provision is against many judgments that have upheld the clause.

• Government stand:

  The Opposition is misleading the Muslims. The Waqf by user provision will not apply to existing registered Waqf by user properties. It will apply prospectively and only to existing resources that are in dispute or are government land.

Online registration of Waqf properties

Parent law allows manual registration and mandates that Waqf boards will submit reports on management and income improvements of properties in six months. The new Bill mandates online registration for better management and compliance.

• Opposition stand:

  The process of online registration is underway and could have been ensured without a new Bill being brought.

• Government stand:

  Waqf lands are the third largest chunk in India after the Railways and armed forces’ lands. Yet, many Muslims remain poor because of inefficient management. Data shows in 2006, India had 4.9 lakh Waqf properties generating Rs 163 crore annually. Today, 8.72 Waqf properties are generating only Rs 166 crore a year.

Waqf Tribunals

Under the 1995 law, persons aggrieved with the orders of Waqf Tribunals have limited appealing rights. The new Bill explicitly allows appeals against Tribunal orders in high courts within 90 days.

• Opposition stand:

  Section 89(3) of the parent law already allows intervention of HCs.

• Government stand:

  Tribunal decisions can only be appealed by way of writs and not civil suits which allow petitioners greater rights. For vote-bank politics, past governments made tribunal orders hard to challenge even though Minority Affairs Ministry data shows 58,898 Waqf properties have been taken over unlawfully.

Section 40

The parent law allowed State Waqf Boards to collect information regarding any property they believed was Waqf and to declare those as such. The new Bill drops this provision.

• Opposition stand:

  The move is interference in Muslim religious affairs.

• Government stand:

  Several private properties — a 14-marla gurdwara land in Haryana’s Jaltana; temples in Tamil Nadu and Karnataka, over 400 acre inhabited by Christian and Hindu families in Kerala — have been unlawfully declared as Waqf under Section 40. With the new Bill, these lands will be free for rightful owners.