By : Yasir Saeed Alvi

Abstract

This article explores the multifaceted crisis surrounding waqf properties in India, focusing on issues of mismanagement, encroachment, and contentious state interventions. It examines the historical and legal framework of waqf as a perpetual charitable endowment, its relevance as a tool for social justice, and the unique inalienability that safeguards its communal purpose. The article critiques the proposed Waqf (Amendment) Bill, 2024, highlighting its potential to undermine waqf’s charitable intent by enabling state control and bypassing judicial oversight. The author expresses skepticism about the motivations behind the bill, emphasising how its provisions could compromise natural justice principles and empower governmental authorities to claim waqf properties unilaterally. By contrasting the proposed reforms with recommendations from the Sachar Commission, the article advocates for professional management and judicial protection of waqf assets, warning against bureaucratic inefficiencies and exploitative encroachments.

Introduction: Waqf as a Legal Institution 

Waqf is a term of Arabic origin which textually translates as “to come to a standstill” or “come to a stop”. This definition comes handy in understanding waqf as a legal concept, that is, any property when endowed as waqf becomes inalienable and perpetual. To make a waqf of a property is to vest the property in Allah or God perpetually and once made, such person (the waqif) loses the “bundle of rights”  over that property, subject to the declarations made in the waqf deed. Resultantly, such property becomes incapable of human ownership and since God is not a tangible entity in Islam, it is managed by a Mutawalli who is appointed by the waqif. 

A waqf is essentially an Islamic charitable endowment and can be made for any or all three purposes i.e. charitable, pious, or religious and once the dedicated purpose is fulfilled, it shifts to satisfy the ultimate or foundational purpose of every waqf – the relief of the poor and disadvantaged sections of the population. By definition, waqf properties are designated to utilise their usufruct for the benefit of the community as a whole or a unique charitable goal. The foundational understanding is that the property be conserved sine die with only the benefits from its use being distributed. 

Relevance of Waqf as a Force of Social Justice and Equity

One of the key under-pinnings of the law is to protect the alienable character of property and to encourage the property to exchange hands. Waqf on the other hand brings an interesting departure from conventional rights over property removing it from the realm of private ownership altogether, instead it positions the property in a perpetual dedication for social welfare. This makes waqf a unique exception to the most fundamental characteristics of the law on transfer of property- alienability and perpetuity. This, in turn, enables waqf to operate on the intersections of property law and social justice, illuminating the role of law in promoting equity. 

The fundamental purpose of a waqf is to be a perpetual-continuous, flowing charity or what is called a sadaqah jaariyah in Arabic. It can be argued that the facet of inalienability of waqf property is founded in this concept. This is because the property in question, once declared as waqf shall continue to serve generations of dispossessed and marginalised communities. From this it follows that if waqf properties were to be made alienable, it would be held privately and eventually it will lose the public purpose that it had been designated for. 

Alienating such property leaves scope for the diversion of the property from its charitable character which can potentially turn it into a property used for commercial or profitable purposes. This is against the underlying principles of law since this would conflict with or undermine the original intent of the previous owner or waqif of the property who had vested the property in God and designed a charitable aim for the property in the waqf deed. Hence, to take away the alienable nature of waqf property would mean taking away its very core which is marked by its social welfare motive and to deprive it of this motive is to deprive the millions who depend on its charitable actions. This was also the view taken by the Supreme Court. 

Guardianship or Grab? The Contentious Future of India’s Waqf Properties

Waqf properties have been a contentious issue for over a decade in India with allegations of mismanagement and corruption coming from within and beyond the Muslim community. Ongoing debates on waqf law reform challenge equally the waqf boards’ administration and the growing interest of the state in waqf properties. It is alleged that the waqf bureaucracy has evidently mismanaged various properties by making illegal sale or gift of the properties. However, a critical question still stands – should this be the basis for the state to take absolute control over the waqf and subject its properties to governmental whims?

In line with the reform of waqf law, the Central Government tabled The Waqf (Amendment) Bill, 2024 in the Union Parliament which is under consideration by the Joint Parliamentary Committee. Various jurists and legal academicians hold that this bill suffers from serious irregularities and irrationalities and has been criticised extensively for it has the potential to drastically limit the scope of waqf’s charitable impact. 

The Waqf Bill’s Hidden Legal Pitfalls 

The glaring irregularities in the proposed legislation have dangerous consequences on the very essence of what waqf is. Ownership is one of the most important considerations of property law which is premised on the principle that a property can never be ownerless i.e. it is imperative to determine who holds the “bundle of rights” or the title to the property. In the event of a contestation of ownership, it is an established principle of law that both the parties making a claim must be brought before a court of law and the question of ownership be determined therein. 

However, a legal analysis of Clause 5 of the proposed law reveals – any government property which has been declared to be that of the waqf, will cease to be so. If the question whether this is a government property or not is raised, it shall be referred to the Collector. This collector will conduct an inquiry “as he deems fit”  and then determine the ownership of the property in question and send a report to the State government. If the Collector, by his sole judgement, concludes that the property belongs to the government, he is empowered to take the decisive step of updating the revenue records. The provision creates a legal presumption of ownership in favour of the government which destroys the equilibrium that must exist between any contesting parties in a suit over the ownership of property. 

This appears to be in open violation of the settled legal principle of nemo judex in causa sua i.e. no one can be a judge in their own cause. Being an agent of the government, the Collector is acting on its behalf and for him to make the assertion, inquiry and pronounce the final verdict all by herself without any intervention of law is to give a free hand. Providing an executive officer with the exclusive authority to decide the ownership of a property, that he is himself interested in, is a clear violation of the principles of natural justice and therefore bad in law. From this it can be analytically deduced that such a provision is dangerous as it gifts the state with the unhindered power to claim any waqf property and decide its ownership all by itself. This provision has completely turned the determination of contested ownership on its face. 

The Waqf Act, 1995 rests the power to conduct an inquiry, regarding the ownership of waqf properties, with the Survey Commissioner and his inquiry report to be submitted to the Waqf Board. The Board then lays claim to the property if there is apprehension that it belonged to the waqf. If any party contested this ownership, they could approach the Waqf Tribunal, a quasi-judicial body established by Section 83 of the same act. The tribunal heard the witness testimonies, took evidence, reviewed documents, and applied judicial principles to conclude the ownership status of the property. It was only after this decision that the official revenue records were updated. This judgement of the tribunal was considered final; however, aggrieved parties could approach the High Court. A resolution of contested property ownership arrived at through judicial determination is what appears to be the legally sound path and must therefore be retained.

Over time, waqf properties have been leased to enhance their productivity; however, many tenants continue to pay the same rent set decades ago. Additionally, some properties with expired lease agreements are still occupied by tenants. This is a serious problem that was raised by the Sachar Commission which had resultantly proposed robust legal protections aimed at sustained reclamation efforts. A lack of protective measures sustains the vulnerability of waqf properties to encroachment and unauthorised secret sales.

The most foundational issue with the waqf boards is their lack of autonomy. Removing excessive and unended bureaucratic interference in the functioning of the board and replacing it with judicial oversight would go a long way. Consequently, the boards will act decisively and efficiently in the areas of property management and resolution of disputes. On the contrary, the bill perpetuates a system of dependency and binds the ability of the waqf boards to exercise independent authority over auqaf as was envisioned by the Sachar Commission. 

Bridging the Gaps: The Unfulfilled Potential in the Bill

The Sachar Commission realised the potential that waqf properties held in improving the socio-economic conditions of Indian Muslims. It was concluded by the commission that various properties have been mismanaged or encroached upon (by the state and other capitalist frameworks) to the extent that it is causing great financial harm to the beneficiaries of the endowment. Resultantly, it proposed various changes to the structure, however, the new reforms do not engage with the recommendations in a solution-driven mechanism. 

Waqf properties must be managed professionally to maximise their utility and financial potential by recruiting property managers and legal experts within the boards. This is in line with the suggestion of the commission which proposed the establishment of the Waqf Development Corporation to oversee the development of waqf properties. The bill, however, continues to rely on conventional, bureaucratic boards nominated by the state, and falls short of addressing the lack of professional expertise within them which is essential for efficient management of auqaf. If continued to remain underutilised, the potential charitable income and social benefits from waqf properties will continue to dip. This will defeat the purpose of the auqaf; the aim must be to realise the potential and generate more money to push it into the line of charitable actions. 

The law must empower judicial bodies adjudicating auqaf matters to reclaim illegally occupied or alienated waqf properties, this should flow from the egalitarian ideas of the Constitution to protect such properties that empower the marginalised. The proposed bill is in fact reducing the powers of the judicial bodies and taking away rights of litigation if the properties are not registered in the strict six-month period. It speaks nothing of legal protections against encroachment by private or public entities, instead it allows a government official to make decisions of ownership about a property that the state is itself interested in. 

Conclusion

The article concludes that the proposed legislation risks diluting the core purpose of waqf properties by eroding their charitable nature and facilitating government appropriation. It calls for reforms rooted in judicial oversight, professional expertise, and robust legal safeguards to protect waqf assets and maximise their social impact. Highlighting the importance of waqf as a tool for social equity, the author warns that the current trajectory threatens to undermine its potential to empower marginalised communities and fulfil its foundational objectives.

Author Profile

Yasir Saeed Alvi is a Political Science Major from the University of Delhi and is reading law at Jindal Global Law School, O.P. Jindal Global University, India. His interest areas include Criminal Jurisprudence, Law and Marginalisation, Real Estate Law, Constitutional Law and Gender Studies.

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