Tanu Sharma is currently in her third year of study for a BA LLB (Hons) at GGU, Central University of Chhattisgarh, Read More
Abstract
Waqf is defined by Indian law (Waqf Legislation) as “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.” By establishing a waqf, the property in question is theoretically protected from future transfers by inheritance, sale, or confiscation. In India, waqf boards are important for overseeing and protecting Islamic charitable and religious endowments. These boards have the duty of supervising the management of Waqf properties and guaranteeing their use for social welfare, charitable, and religious reasons.
Waqf resources, which were previously utilized to fund Muslim society’s social welfare requirements, have lost much of its vigor as a result of Muslims’ economic ill-health. According to the 2006 assessment on the social, economic, and educational situation of India’s Muslim population, known as the “Sachar Committee Report,” there are over 4.9 lac registered waqfs in India.
In order to alter the Waqf Act of 1995, the Union government presented a bill to the Lok Sabha. The goal of the proposed Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2024, is to significantly amend the current law that governs waqf properties in India. In addition to proposing the admission of non-Muslim members on Waqf Boards, the Bill seeks to strengthen the Center’s regulatory jurisdiction over waqf properties.
Keywords- Waqf Board, religious, Islamic, property, charitable, impact
Introduction
According to Islamic law, a waqf is property that has been permanently set aside for religious or altruistic reasons in Allah’s name. The term “waqf” refers to a pious deed that extends the founder’s benevolent intentions beyond their mortal life and can include both movable and immovable assets created for the public good. The creation of a waqf can be accomplished by a formal document or deed, or it might happen naturally when property has been used for religious or altruistic purposes for a long time. Revenue from waqf holdings is usually used to support the upkeep of educational facilities, places of worship, or the assistance of those who are impoverished.
Property that has been declared as waqf is unalienable and cannot be passed on through inheritance, sale, or gift. A non-Muslim can also create a waqf, but the waqf’s goal must be Islamic and the person must declare Islam. The Waqf Act of 1995 governs the administration of Indian waqfs. The state administration conducts a survey to identify and outline waqf properties. Waqf properties can be found by a survey commissioner appointed in accordance with the Act’s requirements, using public record review, witness testimony, and local investigations.
Doctrine of Cypress
Islamic law applies the idea of guardianship, which is based on the English law of trusts, to waqfs. Because it means “as nearly as possible,” the legal term “cypress” perfectly captures the spirit of this theory. When a waqf’s initial goal is no longer feasible, is completed, or is no longer conceivable, the theory of cypress offers a legal way to continue it.
When the original goal of a charitable trust or will cannot be carried out precisely as stated, courts may alter its provisions under the Doctrine of Cypres. “Cy pres comme possible,” which translates to “as near as possible” in Norman French, is where the word “cy pres” originates.
Social Impact of Waqf Board
A socioeconomic welfare system must be established before a civilisation can abolish poverty and teach the “haves” that some of their money goes to the “have nots.” Charity, in its simplest form, is helping people in all ways, not just financially, from those who have more to those who have less. The Quran makes no reference of “waqf,” but it is clear from this that doing good deeds results in heavenly favour. The fact that waqf is more than just alms, ṣadaqah, or fiṭrānah (zakāẗ al-fiṭr) suggests that Allah may have spared the honour of creating waqf for His Beloved Prophet (may Allah’s peace and blessings be upon him), but it is also something that endures forever from generation to generation, making generosity eternal.
Throughout the Islamic world, millions of awqāf were established over time, offering services in the areas of religion, social welfare, education, and health. Broadly promoting the beneficial function that awqāf play as social welfare tools is necessary. Particularly in Third World countries, where the bulk of Muslims currently reside, it is a welcome alternative to the state’s social welfare programs, which have virtually disappeared.
It might serve as a reminder to these affluent Muslims and Muslims in other developed nations, like the West, of their moral duty to help the poor. However, the problem lies in the lack of affluent Muslims. As a result, we hardly ever hear about setting up a new waqf. It could take years before there is any fruit from even a sincere endeavour to rekindle the urge to establish waqf now. Therefore, what should be done to address the philanthropic needs of the ummah today? The obvious way to raise money for social welfare is to repair the awqāf, which is currently in situ but in poor condition.
Role of State in administration of Waqf Board
Waqf takes place in the private sector when a private citizen (wāqif) designates his property as privately held and transfers it to a private nominee (mutawallī), who determines the property’s purpose or purposes. As a result, the State, which is a part of the public sector, has no logical relationship to it other than to offer broad supervision in the sake of good governance. Waqf administration was established in this manner during the Prophet’s (may Allah bless him) lifetime and persisted in this manner for many generations.
The Muslim public in general and several Muslim states are increasingly coming to believe that government involvement in waqf management is harmful, foolish, and ineffective. In India, for instance, the Joint Parliamentary Committee noted in its report that the government foolishly selects “persons with no knowledge of waqf matters, integrity, or management capability” as members and chairman of waqf boards in order to gain “political mileage through patronage” in waqf matters, despite the fact that these individuals would be interacting with “the religious and charitable institutions, and discharge a very sacred duty.” (Such) unscrupulous persons should not be put in-charge of the waqf Boards and damage the cause of the waqf.
In order to finance the construction of waqf properties in Singapore, WAREES successfully collected funds through the creative use of the idea of istibdāl (asset migration), real estate investment efforts, and cutting-edge Sharīʿah compliant financial methods. This novel approach is a step towards awqāf’s liberation from governmental authority.
Legal Impact of Waqf Board
In the case of waqf, the position remained static, but the law of trust that underpinned it a millennium ago continued to be developed by jurists. It is possible to briefly list the following areas where the law of trust has undergone significant or modest improvements-
- Rule against perpetuity.
- Invention of ‘resulting’ and ‘constructive’ trusts.
- To properly “trace” trust from one encroacher to another, the equitable remedy of “tracing” is employed, unless a legal buyer pays for it without providing notice.
- “Knowing assistance” and “knowing receipt,” which allow even those who are not trustees to be held accountable for breach of trust if they interfere with the management of the trust fund, property, or both.
- In order to preserve equality between the beneficiaries who are “life interest holders” and “remainder men,” the trustee has a duty to convert (sell) any trust assets that are wasting, future, or reversionary in nature and that may take the form of royalties, risky investments, etc., and to use the sale proceeds to fund safe investments.
- A trustee who is also a beneficiary is subject to an increased liability under the chillingworth rule. In the event that he and his non-beneficiary co-trustee violate the terms of the trust, he will first reimburse his co-trustee to the extent of his beneficial interest and then equally divide any leftover liabilities with the co-trustee.
- A loss from one transaction cannot be “set off” against a gain from another by a trustee unless all of the transactions are a part of a common investment plan.Given the absence of such provisions in the law of waqf, a careful analysis may demonstrate the potential benefits of these recommendations for waqf legislation and administration. However, awqāf is mostly impacted by poor administration and corruption. These problems are caused by immorality and un-Islamic behaviours and patterns, and the solution is found in the Islamic Law (Sharīʿah).
Challenges
- Mismanagement and Corruption-Lack of transparency and accountability in the administration of Waqf properties, Instances of misuse of Waqf funds.
- Encroachment on Waqf Properties-Illegal occupation and encroachment on Waqf properties.
- Lack of Professional Management-Inadequate resources and trained personnel to effectively manage Waqf properties.
- Legal and Administrative Issues-Complex legal procedures and bureaucratic hurdles in managing Waqf properties.
Government’s Steps towards Waqf Board
The provisions giving the Central Government of India extensive control over waqf management so infuriated Indian Muslims that the Central Government learnt a valuable lesson in waqf management, hindering the implementation of the Waqf (Amendment) Act, 1984, which contained the offending elements. Currently, the Indian government is limiting its regulating authority to “secular activities” of awqāf in order to be cautious. The Waqf (Amendment) Act of 2013 added Section 96 to the Waqf Act of 1995 when it was revised. The secular activities are described in an interesting way in this subsection.
Section 96(1)-The Central Government has the following rights to regulate the secular activities of awqāf-
(a)Establishing general guidelines and policies for waqf administration in relation to the awqāf’s secular activities;
(b)Coordinating the activities of the Central Waqf Council and the (Waqf) Board in relation to their secular functions;
(c)Reviewing the administration of the awqāf’s secular activities generally and suggesting any necessary improvements are the first two goals.
(2) When the Central Government exercises its authority and functions under sub-section (1), it may request periodic or other reports from any Board and may provide the Board instructions that it deems appropriate, which the Board must abide by.
Social, economic, educational, and other welfare-related endeavours are considered “secular activities” for the purposes of this provision.
This legal framework provides a safe buffer that enables any government to resolve waqf concerns, which may be helpful to governments in other nations. However, due to the delicate nature of this issue, the scope and reach of governmental regulatory authority may vary from nation to nation. A commercial bank taking on the responsibility of the government to administer awqāf would also result in good governance, according to the English trust model. Banks are skilled at making money and investing, but they also have the specific knowledge needed to manage trust properties. They can only manage and distribute waqf monies, though, and lack any governmental authority.
Conclusion
In India, waqf boards thus serve a variety of purposes, advancing the community’s social, legal, and cultural advancement. They guarantee the effective management and socially beneficial use of waqf properties.The social and economic advancement of Muslim communities in India is greatly aided by waqf boards. They do, however, confront several obstacles that call for workable answers. For Waqf properties to be used sustainably and effectively for the community’s benefit, reforms that increase accountability, transparency, and professional management are essential.
