From non-Muslims on state boards to DC as arbiter: Sweeping changes in waqf Bill

Among the key changes proposed is to bring the District Collector as the arbiter on whether a property is waqf property or government land.

The Bill states 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.” However, the amendment states that the Collector will make this determination in case of a dispute and not the Waqf Tribunal.

Currently, under the 1995 Act, this decision is made exclusively by the Waqf Tribunal and as per Section 6 of the Act, “the decision of the Tribunal in respect of such matter shall be final.”

“In case the Collector determines the property to be a Government property, he shall make necessary corrections in revenue records and submit a report in this regard to the State Government,” says the proposed Bill. Then, a crucial sub-clause adds that “provided that such property shall not be treated as waqf property till the Collector submits his report.”

This means that until the government decides the issue, waqf cannot be in control of the disputed land. The proposed Bill, if enacted, will give the Central government the power to “direct the audit of any waqf at any time by an auditor appointed by the Comptroller and Auditor-General of India, or by any officer designated by the Central Government for that purpose”.

The amendments also seek to completely remove the concept of “waqf by use” which means that a property can be deemed to be a waqf through use even if the original declaration is suspect.

In Islamic law, the dedication of a property as waqf was done largely orally until documentation became the standard norm. For example, even in the absence of a waqfnama, a masjid can be deemed to be waqf property if it is continuously used as such.

The Bill, by omitting the provisions relating to the “waqf by user,” makes a waqf property suspect in the absence of a valid waqfnama.

Another key change in the Bill is introducing the concept of “adverse possession” with respect to waqfs. Under Section 170, the 1995 Act explicitly barred the Limitation Act from being applicable to waqfs. However, the Bill proposes to remove that exception, allowing the statute of limitations to apply. This would mean that squatters on a waqf property would have the right to seek adverse possession of that land and bars claims by the waqf board after 12 years.

For the establishment and constitution of Central Waqf Council (which works for advising Central government, state governments and the waqf boards), the proposed Bill intends to give the power to the Centre to include three MPs (two from Lok Sabha and one from Rajya Sabha) without specifying that they have to be Muslim. In the original Act, the three MPs to be included in the Council had to be from the Muslim community.

Speaking to The Indian Express, K Rahman Khan, former Minority Affairs Minister at the Centre under the UPA-II government, said: “All of a sudden, the government has floated this Bill without consultations with the stakeholders, including the Muslim community. This Bill in total has undone whatever reforms the government had brought in 2013 through an amendment to the Waqf Act… They are abolishing the Tribunals and survey of waqf properties. No waqf will be registered without a deed. They have made the Collector the authority on issues related to waqf properties who is a government servant and not an individual authority.”

Uttar Pradesh BJP MLC and former Vice-Chancellor of Aligarh Muslim University Tariq Mansoor said the proposal for reform of waqf “requires dispassionate analysis.”

“One should not be swayed by misinformation and false propaganda. Proposals which further social justice and gender equity by including representation of women and marginalised groups in waqf boards should be welcomed. Similarly, proposals for leveraging technology for ushering scientific, efficient and transparent process to manage Waqf Properties will lead to improved administration. Towards this, lessons can be drawn from the best practices in Islamic nations, where Auqafs are mostly public organisations engaged in charitable/pious activities,” he said in a post on X.