EXPLAINED

Waqf Bill: Will the amendment weaken Muslim control over gifted lands?

The Waqf (Amendment) Bill 2024, which was passed early Thursday, proposes significant changes to the governance, administration, and dispute resolution mechanisms of waqf properties in India. It has even redefined 'waqf'.

In the Muslim belief system, 'waqf' was for the Almighty and, therefore, irrecoverable. The amendment will clear the way for the recovery of 'waqf' properties.

The Waqf Act has also been rechristened in such a way that the word 'waqf' will gradually fade into oblivion. Its new title is so long that in future the Act would perhaps be known only by its Urdu acronym. UMEED (Unified Waqf Management, Empowerment, Efficiency and Development) Act, 2025.

It strips waqf boards of their powers and allows the Centre greater role in he functioning of 'wakf' boards.

Onmanorama explores the major provisions of the Bill and the key issues associated with its implementation.

What is waqf's new definition?
In 2013, after the previous amendment, this is what 'waqf' meant. "It is the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable."

In 2025, waqf has been redefined thus. "It is the permanent dedication by any person practising Islam for at least five years, of any movable or immovable property, having ownership of such property, for any purpose recognised by the Muslim law as pious, religious or charitable."

The implication is that non-Muslims cannot dedicate properties, and neo-Muslims will have to wait for five years.

The new amendment also casts aside Section 104 of the Waqf Act, which allowed non-Muslims to donate properties for waqf. Non-Muslims can still donate, but cannot make a waqf dedication.

Is there relief for Munambam residents?
The Joint Parliamentary Committee (JPC) has introduced an amendment (Section 2A) that specifies that the waqf law will not be applicable to a charity or trust run by a Muslim for purposes similar to waqf. But this is vague. 

What will happen to trusts and charities established by Muslims in accordance with Indian laws but have already been registered as waqf property, like in the case of Munambam? There are many such immovable properties in the country. 

Will their waqf connection automatically end once the new law kicks into force, causing large swathes of land to slip out of the waqf fold even against the wishes of the owners? Or, does the clause only mean that Muslim trusts and charities uncomfortable with waqf rules can approach waqf tribunals/courts seeking separation? Is the new Section 2 A an optional clause or a mandatory one? 

The solution to the Munambam conundrum can be found in the answers to these questions.

Has role of non-Muslims in waqfs increased?
Non-Muslims have been kept out of 'auqaf' (plural of 'waqf') but have been introduced into waqf administration.

The Central Waqf Council - a body that advises the Centre, states and the waqf boards on the functioning of the boards - will henceforth have two non-Muslims. On top of it, the amendment also states that the ex officio chairperson of the Council, the union minister in charge, can also be a non-Muslim.

The state waqf boards, too, will have two non-Muslim members, and it has also been expanded to include the representatives of Shia, Sunni and backward Muslim communities.

The stipulation that the chief executive officer (CEO) of the board should be a Muslim has also been axed. The existing Act is so particular about a Muslim CEO that it says that in case of non-availability of a Muslim officer, another Muslim officer of equivalent rank should be appointed on deputation.

The Act that has just been passed in the Lok Sabha merely says that there should be a full-time Chief Executive Officer of the Board. The CEO post of a waqf board, in short, is now open to individuals from all communities.

Are non-Hindus appointed in temple trusts?
The Joint Parliamentary Committee (JPC) had hurled this poser at the Ministry of Minority Affairs. The Ministry had responded saying that non-Hindus were allowed as members in certain Hindu Endowment laws.

Shri Amarnath Ji Shrine was cited as an example. In the board administrating the Amarnath Ji Shrine, besides others, there are three persons, who have distinguished themselves in administration, law and finance. Shri Amarnath Ji Shrine Act does not say that these persons must necessarily be a Hindu.

So is the case with Badrinath and Kedarnath temples in Uttar Pradesh. Seven members in the temple committee are nominated by the state government but the UP Temples Act does not mention that they should be Hindu.

What is 'waqf by user'?
It refers to a situation where an old property is declared as waqf because it is known to be used for pious, religious or charitable purposes for a long time (50 or 100 years or more). And the declaration is done not through formal documentation but informally, orally.

The Act, still in force, says that such waqfs will not cease to exist even if the property is no more being used for the purpose it was known for.

The 2025 amendment takes out the informal 'waqf by user' concept from the waqf jurisprudence. Henceforth, there will be no legal protection for ancient waqfs that lack formal deeds or records.

A hoary property once used for Muslim faith-related activities can still be taken over as waqf but the paperwork has to be thorough, and the final decision will rest not with the concerned waqf board but with the state government.

This is seen as a major encroachment into the personal beliefs of Muslims. Under Muslim Personal Law, oral gifts, or 'Hiba', are permitted.

The country had acknowledged this. Take the Transfer of Property Act, for instance. Its Section 123 mandates that all gifts of immovable property must be in writing but Section 129 of the Act spares Muslims of this trouble.

What happens when 'waqf by user' is omitted?
The fear is that no Muslim property or place of worship will be safe from bogus claims. Its removal can make way for the government to take over numerous waqf properties, citing the lack of a written deed.

The Centre, however, reassures that Section 3B(1)&(2) of the Waqf (Amendment) Bill, 2024, will protect properties that were declared as 'waqf by user' prior to the commencement of the new amendment. So if waqf properties are registered, which they normally are, they will not be asked for a written waqf deed.

The proposed amendment will apply only prospectively.

What happens to government-waqf disputes?
There will be no such prospective benefit for waqf lands that are shown up as government properties in official probes.

The amendment has introduced a new clause that will recover waqf land if established as government property. This clause will have retrospective effect, and heightens the possibility that large swathes of waqf land will be reverted to revenue land.

"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," the amendment says.

Official figures say that in 25 of the 32 states/union territories in India, 5,973 government properties have been declared as waqf properties. The Archaeological Survey of India has also informed that 280 protected monuments have been declared as waqf properties.

Is collectors' gain waqf board's loss?
District collectors will now get a prominent role in the management of waqf properties. The responsibility to survey waqf lands has been transferred from the Survey Commissioner to the district collector.

It is also upon the collector (Section 36 (7) of the new legislation) to check the "genuineness and validity" of the waqf application before registration. Earlier, the "genuineness and validity" checks were left to the waqf boards to verify. Waqf boards, as a consequence, will lose substantial power.

As if driving the last nail in its coffin, Section 40, which gives waqf boards sweeping powers to establish a property as waqf property, has been abolished. 

Under this section, a waqf board could conduct its own inquiry, "as it deems fit", and declare a property as waqf. The Ministry of Minority Affairs had told the JPC that information from eight states in the country revealed that 515 properties were declared as waqf under Section 40. 

The amendment will now cut the waqf boards to size.

Originally, the government wanted the district collector to inquire into government-waqf disputes, too. The JPC but put its foot down and said that an officer above the rank of collector, which it termed "designated officer", should be given the task.

The amendment gives the "designated officer" the power to inquire, but does not set a deadline. The officer can delay endlessly and during the time of the inquiry, the disputed property ceases to be waqf land.

Will waqf boards be politicised?
Such a concern is provoked by the change in the constitution of the waqf boards.

Under the existing Act, a maximum of two members will be elected from any of the two electoral colleges: 1) Muslim Members of Parliament from the State, and 2) Muslim members of the state legislature. The new amendment says that these two will be "nominated by the state government".

Will waqf tribunals be weakened?
The strength of a tribunal has been reduced from three to two. Avoided is the Muslim law expert. A tribunal's power, too, has been whittled down. As it stands, the decision of the tribunal is final. The amendment has struck down this clause, allowing aggrieved parties to approach the High Court.

What's more, once the amendment comes into force, any tribunal, say the Railway tribunal, can function as a wakf tribunal.