Source: The Hindu 

Introduction 

The Union government introduced a Bill in the Lok Sabha to amend the Waqf Act of 1995. The proposed legislation, titled the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2024, seeks to substantially reform the existing act governing waqf properties in India. The Bill aims to enhance the Centre's regulatory authority over waqf properties and, in a landmark provision, proposes the inclusion of non-Muslim members in Waqf Boards.  

What is Waqf and Waqf Property? 

• Definition of Waqf: 
  • Section 3(r) of Waqf (earlier Wakf) Act, 1995 defines waqf as: the permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and include 

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; 

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; 

(iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and 

(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication. 

• Waqf Property: 
  • A Waqf is personal property given by Muslims for religious, charitable, or private purposes. 
  • Ownership of Waqf property is implied to be with God. 
  • A Waqf can be formed through a deed, instrument, orally, or by long-term use for religious/charitable purposes. 
  • Once declared as Waqf, a property's character changes permanently, it becomes non-transferable and is detained perpetually. 

What is India’s ‘Waqf’ law? 

About Waqf 

• Under Islamic jurisprudence, a waqf constitutes property dedicated in perpetuity for religious or charitable purposes, in the name of Allah. 
• Waqf may encompass both movable and immovable assets, established for public benefit, representing an act of piety that extends the founder's charitable intentions beyond their mortal existence. 
• The establishment of a waqf may be effected through a formal deed or instrument, or by operation of law where property has been utilized for religious or charitable purposes over a substantial period. 
• Revenue generated from waqf properties is typically allocated for the maintenance of religious institutions, educational establishments, or for the benefit of indigent individuals. 
• Upon designation as waqf, the property becomes inalienable and cannot be subject to transfer through inheritance, sale, or gift. 
• A non-Muslim can also create a waqf, but the individual must profess Islam and the objective of creating the waqf has to be Islamic. 
• In the Indian, waqfs are governed by the Waqf Act of 1995. 
• The identification and delineation of waqf properties are executed through a survey conducted under the aegis of the State government. 
• A survey commissioner, appointed pursuant to the provisions of the Act, is empowered to identify waqf properties through local investigations, examination of witness testimony, and scrutiny of public records. 

What is the Doctrine of Cypress? 

• The doctrine of cypress, derived from the English law of trusts, is applicable to waqfs under Islamic law. 
• The term "cypress" is a legal term of art, meaning "as nearly as possible," which encapsulates the essence of this doctrine. 
• The doctrine of cypress provides a legal mechanism for the continuation of a waqf when its original purpose becomes impossible, impracticable, or has been fully accomplished. 
• Where the specific object of a waqf cannot be executed due to lapse of time, changed circumstances, legal impediments, or completion of the specified purpose, the doctrine of cypress may be invoked. 
• Upon application of the doctrine, the income or benefits of the waqf property may be utilized for purposes that are as nearly as possible in alignment with the original intentions of the waqif (founder of the waqf). 
• The doctrine serves to prevent the failure of a waqf due to impossibility of performance of its original purpose, thereby upholding the perpetual nature of waqfs. 
• In applying the doctrine, courts and Waqf Boards are required to adhere as closely as possible to the original intentions of the waqif while adapting to current realities. 
• The doctrine allows for a flexible interpretation of the waqf's purpose to ensure its continued validity and social utility. 
• Application of the doctrine necessitates a careful balance between respecting the waqif's original intentions and addressing contemporary needs or changed circumstances. 
• The doctrine of cypress in relation to waqfs is recognized and applied by Islamic jurisprudence and is incorporated into modern waqf legislation in various jurisdictions. 
• The implementation of this doctrine is subject to judicial discretion and must be exercised in accordance with the principles of Islamic law and the specific provisions of applicable waqf legislation. 
• The doctrine serves as a tool for the sustainable management and administration of waqf properties, ensuring their continued relevance and benefit to society. 

What are the Modes of Cration of Waqf? 

• Creation of Waqf by Act Inter Vivos: 
  • This form of waqf is established during the lifetime of the waqif (founder). 
  • It takes immediate effect upon its creation. 
  • The waqf is constituted through a declaration made by the waqif while alive. 
• Creation of Waqf by Will (Testamentary Waqf): 
  • This type of waqf is created through testamentary disposition.  
  • It becomes effective only upon the death of the waqif.  
  • The waqf is limited to one-third of the net estate of the deceased waqif, unless consent is obtained from the legal heirs. 
  • Any disposition exceeding one-third of the estate requires explicit consent from the heirs to be valid. 
• Creation of Waqf During Terminal Illness (Marz-ul-Maut):  
  • Waqfs created during the waqif's terminal illness are subject to specific legal provisions.  
  • Such waqfs are analogous to gifts made during marz-ul-maut (death illness). 
  • They are restricted to one-third of the waqif's property without the consent of the legal heirs.  
  • Dispositions exceeding one-third require the express consent of the heirs to be enforceable. 
• Creation of Waqf by Immemorial User:  
  • While waqf properties are generally subject to limitation periods, an exception exists for waqfs established by immemorial use.  
  • Immemorial user allows for the recognition of a waqf based on long-standing, continuous, and uninterrupted use for waqf purposes.  
  • This method of waqf creation is recognized as an exception to the general rules of limitation.  
  • The establishment of a waqf through immemorial user requires clear and convincing evidence of such long-standing use for waqf purposes. 

What are the Kinds of Waqf? 

• Public Waqf:  
  • A public waqf is established for the benefit of the general public or a significant segment thereof.  
  • The primary purpose of a public waqf is to serve religious or charitable objectives.  
  • Such waqfs are intended to promote public welfare and are not restricted to any specific family or individual beneficiaries.  
  • Public waqfs are subject to more stringent regulatory oversight due to their broader societal impact.  
  • The management and administration of public waqfs typically falls under the purview of state Waqf Boards or similar statutory bodies. 
• Private Waqf (Waqf-ul-al-Aulad): 
  • A private waqf, also known as Waqf-ul-al-Aulad, is created primarily for the benefit of the waqif's (founder's) family and descendants.  
  • This form of waqf functions as a family settlement structured within the framework of Islamic waqf law.  
  • The beneficiaries of a private waqf are typically limited to the waqif's family members and descendants, as specified in the waqf deed.  
  • While primarily benefiting the founder's family, a private waqf may also include provisions for charitable purposes after the extinction of the family line.  
  • Private waqfs are subject to specific legal provisions and limitations to prevent perpetuities and ensure compliance with Islamic principles.  
  • The validity and continuance of private waqfs may be subject to statutory restrictions in various jurisdictions due to their potential conflict with modern property laws. 

What are the Key features and Role of Waqf Board? 

• The Waqf Board, established under the Waqf Act of 1995, is vested with the authority to oversee and administer waqf properties within its respective State jurisdiction. 
• The Board, recognized as a juristic person, possesses the legal capacity to initiate or defend legal proceedings in a court of law. 
• The Board is empowered to undertake measures for the recovery and protection of waqf properties, including those that may have been alienated or encroached upon. 
• Subject to the approval of a supermajority (two-thirds) of its members, the Board may sanction the transfer of immovable waqf property through various modes of conveyance, including sale, gift, mortgage, exchange, or lease. 
• The Board is charged with maintaining comprehensive records of waqf properties within its jurisdiction, as identified and delineated by the survey commissioner appointed under the Act. 
• The Board is entrusted with the supervision of mutawallis in their administration of individual waqfs, ensuring compliance with the provisions of the Act and proper management of waqf assets. 
• In accordance with the 2013 amendments to the Act, the Board's authority has been augmented, particularly with respect to restrictions on the alienation of waqf properties. 
• The Board serves as a liaison between the State government and the waqf institutions, facilitating the implementation of waqf laws and policies within its jurisdiction. 
• The Board is mandated to work with the Central Waqf Council to ensure uniform administration of waqf properties across the country and to resolve inter-State disputes pertaining to waqf matters. 

What are the Essentials for Valid Waqf? 

There are five essentials of valid waqf Under Hanafi Law 

• Permanent dedication of property 
• The waqf must be competent 
• The waqf must be owner of the property 
• The waqf must be religious  
• It must be unconditional  

There are four conditions of validity of a waqf Under Shia Law 

• It must be perpetual  
• It must be absolute and unconditional  
• Possession must be given of the thing appropriated  
• It must be entirely taken out of waqf himself  

What are the Statutory Provisions Relating to waqf? 

• The Mussalman Wakf validating Act, 1913: 
  • This Act was enacted to validate Muslim waqfs that were previously deemed invalid by certain judicial decisions. 
  • The Act explicitly recognized the validity of waqfs created for the maintenance and support of the creator's family, children, and descendants. 
  • It declared that no waqf shall be deemed invalid merely because the benefit reserved therein is for the waqif's (creator's) family, children, or descendants. 
  • The Act applies retrospectively to validate waqfs created before its enactment, provided they met certain conditions. 
  • It defined "wakf" as the permanent dedication of any property for any purpose recognized by Muslim law as religious, pious, or charitable. 
• The Wakf Act, 1954  
  • This Act was the first comprehensive legislation for the administration of waqfs in independent India. 
  • It provided for the establishment of Central and State Wakf Boards for the supervision and administration of waqfs. 
  • The Act defined "wakf" more expansively, including both public and private waqfs. 
  • It established the office of the Commissioner of Wakfs to oversee the administration of waqfs. 
  • The Act provided for the creation of a Wakf Fund for the maintenance and development of waqf properties. 
  • It introduced provisions for the better management and utilization of waqf properties. 
  • The Act set out procedures for the resolution of disputes relating to waqfs. 
  • It provided penalties for misuse or misappropriation of waqf properties. 
  • The Act empowered Wakf Boards to take measures for the recovery of lost waqf properties. 
  • It introduced provisions for the protection of waqf properties from encroachment. 

Who is Mutawalli? 

About 

• A Mutawalli is a person appointed to administer and manage waqf property. 
• The Mutawalli acts as a trustee or custodian of the waqf, entrusted with its care and management. 
• A Mutawalli may be appointed by the waqif (creator of the waqf) or by the Waqf Board under the Waqf Act provisions. 
• The Mutawalli holds a fiduciary position and is bound by the terms and conditions specified in the waqf deed. 

Powers and Duties of Mutawalli: 

• The Mutawalli can administer the waqf property in accordance with the purpose for which it was created. 
• It is the duty of the Mutawalli to carry out the intentions of the waqif as expressed in the waqf deed. 
• The Mutawalli is obligated to maintain proper accounts of the waqf property and its income. 
• The Mutawalli must submit annual accounts and reports to the Waqf Board as prescribed by law. 
• The Mutawalli is authorized to lease waqf property, subject to the restrictions and conditions laid down in the Waqf Act. 
• The Mutawalli is duty-bound to protect and preserve the waqf property from damage, waste, or loss. 
• The Mutawalli is empowered to institute legal proceedings for the protection of waqf property, with the prior sanction of the Waqf Board. 
• The Mutawalli is prohibited from alienating or transferring waqf property without the prior approval of the Waqf Board and in compliance with the provisions of the Waqf Act. 

Removal of Mutawalli: 

• The Waqf Board is vested with the authority to remove a Mutawalli under specific circumstances as provided in the Waqf Act. 
• Grounds for removal may include persistent failure in the performance of duties, misappropriation or loss of waqf property due to gross negligence. 
• The Waqf Board may remove a Mutawalli if found to be unsound mind, suffering from physical or mental defect or disease, or convicted of any offense involving moral turpitude. 
• A Mutawalli may be removed if found to have purchased waqf property without the Waqf Board's prior permission. 
• The Board may remove a Mutawalli for willful and persistent default in submission of accounts or reports to the Board. 
• A Mutawalli may be removed for flagrant violation of any provision of the Waqf Act or rules made thereunder. 
• The removal process must adhere to principles of natural justice, including providing the Mutawalli an opportunity to be heard. 
• The order of removal issued by the Waqf Board is subject to appeal as provided in the Waqf Act. 

Conclusion 

The Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2024, introduced in India, aims to overhaul the legal framework governing waqf properties. Key changes include increasing central government oversight and allowing non-Muslims to join Waqf Boards. The bill seeks to improve management and address inefficiencies but has faced criticism for lack of stakeholder consultation and concerns about religious rights. Waqf properties, dedicated for religious or charitable purposes, are governed under various historical and current legislations, with the role of Waqf Boards being crucial in their administration.