Central Waqf Act, 1954 (India)
The period 1947-1954 was a critical one for the waqfs of independent India. In the wake of partition many waqfs were left without a trustee or beneficiary, as so many of them had fled or migrated to Pakistan. Meanwhile, a reverse migration from Pakistan resulted in the illegal occupation of waqf properties by displaced persons. Everyone exploited the chaotic situation of those times to gain personal advantage at the cost of waqfs.
When concerned Muslims organised within the ranks of Anjuman Himayat-e-Islam and Jamiat al-Ulema-al-Hind presented a detailed report to Nehru, he readily became convinced of the immediate need for action. The result was the Central Waqf Act of 1954. It has been argued that this Act was the “best thing that happened to waqfs in India”. This is because, it is argued, for the first time after the Mughals, this Act put in place an all-India law dealing with waqfs (Rashid, 1997: 10). Thus the worldwide trend towards centralization of waqfs has found expression in India through this Act, which provides a landmark in the history of the Indian waqf administration. The Act constituted Boards with authority and powers, it imposed precise obligations upon the trustees, mutawallis, and made their violation a penal offence, it granted state governments supervisory responsibility, it conferred on the Central Government the authority to lay down the policies to be adopted by the Boards. With this Act all religious and charitable endowments, irrespective of denomination, came under state control. The “management and security of all endowed property is now included in the duties of government”. The act also required that all religious and charitable endowments be registered in the official book of endowments. The State Department of Endowments appointed a director who was responsible to each state government for the efficient management of the department. It was the duty of all the directors of endowments to safeguard all the endowed property and to ensure that they were functioning according to their original status.
In short, the act “laid down a sound administrative structure to ensure proper administration of the waqfs in the country”. It has been argued that whatever lacunae existed in the Act have been removed by the Waqf Amendment Act of 1964 and that consequently the amended act is a very sound legislation (Rashid and Husain, 1979: 41). Notwithstanding these claims, it is more likely that what we have here is the beginning of a major centralization drive much like those observed nearly everywhere else in the Islamic world. The Central Waqf Act extends to the whole of India except the states of Jammu, Kashmir, Bihar, Uttar Pradesh, West Bengal and Gujarat. The states in italics, have their own local waqf acts. The Central Waqf Act defines waqf in Section 3 as a permanent dedication made by a Muslim of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable. Thus the Act eliminates the highly controversial issue of cash waqfs at one strike so that these waqfs are now perfectly valid in India. Another controversial issue, the family waqfs, or the so-called waqf alal aulad, are also permitted providing that the property was dedicated for any of the purposes mentioned above. Section 66-C of the act also makes provisions for the creation of waqfs by non-Muslims. Centralization of the waqf system starts with the Section 4, which states that the state governments were to appoint a Commissioner who would carry out surveys of waqfs. The surveys were to contain standard information. Moreover, every trustee, mutawalli, has been obliged by the law to report and register his waqf with the State Waqf Board. Any change in the particulars of the waqf or its mutawalli was also to be reported to the Board. Failure to do so was made penal.
It is thanks to these surveys initiated by the Waqf Act, 1954 that we have been informed about the huge size of the Indian waqf sector. Even more importantly, the surveys also revealed the details of waqf estates illegally usurped (Rashid, 1997). A provision regarding the assumption of direct management of waqf by the Board is contained in the Central Act. Thus it is provided that the Board can assume direct management of the waqf for a period or periods not exceeding five years. This assumption of direct management may be deemed necessary if: the office of the mutawalli is vacant and no suitable person is found under the terms of the waqf deed; the right of a person to act as mutawalli is disputed and the mutawalli or a committee managing the waqf has abused its powers and failed in its duties.
Under the Act, istibdal requires permission from the Board. If an istibdal occurs without permission, the Board orders the person in possession of the property to deliver it to the Board within 30 days. A person aggrieved by such an order may appeal to the District Court.
A trustee can be removed only if three-fourths of the total members of the Board support such a move. The trustee, mutawalli, is obliged to furnish to the Board before the first day of May every year a full statement of the accounts of the waqf. These accounts are audited by an auditor appointed by the Board. If a loss is caused to the waqf on account of neglect, carelessness etc. of the mutawalli, he is liable to make good the loss under section 33 of the Central Act.
Section 46 of the Act obliges the mutawalli of every waqf to pay to the Board six percent of the net annual income of the waqf concerned. Moreover, the Central Waqf Act has also exempted those waqfs whose annual net income does not exceed 100 rupees from the payment of contribution. Every mutawalli, is expected to pay his contribution to the Waqf Board. Failure to do so, will lead to penal action against him. Such payments are deemed necessary for the finances of the Board, which is spent for the promotion of religious and technical education as well as welfare.
The following functions and powers given to the Waqf Board by the Act demonstrate clearly the degree of centralization affected. The Board must:
Give directions to the mutawalli for the administration of the waqfs
Determine in what way the surplus of a waqf for which there is no waqf deed, is to be utilised. The mutawalli of such waqfs are obliged to obey the instructions of the Board
Inspect the waqf properties, accounts etc. The mutawalli is obliged to allow such inspections
Keep information about the origins, income, object and the beneficiaries of every waqf
Ensure that the income of the waqf is spent in accordance with the original purpose
Give directions for the administration of the waqf
Settle schemes of management for a waqf
Scrutinise and approve the budgets submitted by the mutawallis
Audit the accounts
Appoint and remove the mutawallis if there is a vacancy or when the right of any person to act as a mutawalli is disputed
Take measures for the recovery of lost properties of any waqf
Institute and defend suits in court of law relating to waqfs
Sanction leases of property for more than three years or exchange properties according to the provisions of the Muslim law. Istibdal done without the Board’s sanction is rendered by the Act invalid even if it has been permitted originally in the waqf deed
Administer the waqf fund
Call for statistics from the waqfs
Cause surveys of the waqf properties
Collect information about a certain property and to decide whether it is waqf property or not. The Board’s decision, unless revoked by a Civil Court, is final
Do all such acts as may be necessary for the due control, maintenance and administration of waqfs.
In Bihar there are separate Sunni and Shi’ite waqf boards. This distinction also used to exist in Delhi. But the two were merged in 1962. It seems the waqf boards were often abolished and merged or re-established in parallel with the constant changes that occurred in the borders of the Indian states. This situation seems to have created considerable confusion.
In December 1960 an Interstate Waqf Conference was convened. In the conference the Waqf Boards complained that the funds at their disposal were very limited. To enhance them the following were suggested:
Since contribution from the waqfs are the main source of income for the boards, those mutawallis who have not paid their contributions should be removed
Waqf surveys should be conducted
The accumulated income of the waqf properties vested in the custodians should be transferred to the Boards
Funds under direct management of waqf boards should be invested
Interest unclaimed by the waqfs on religious grounds could be transferred to the boards for utilisation on charitable purposes
Money belonging to the waqfs should be kept in public accounts if it exceeds Rs.500
Rashid claims that almost all the difficulties experienced in the working of the 1954 Act have been removed by the Waqf Amendment Act of 1964. In an attempt to reduce the tension between various Islamic sects, an important amendment has been promulgated that if the number of Shi’ite waqfs exceed 15% of the total number of waqfs in a state, separate waqf boards are to be established.
Hitherto the Board had no authority to issue orders to a mutawalli concerning the utilisation of his surplus funds. It can now do so.
Although the 1954 Act had authorised the Board to sanction long term leases of waqf property or mortgage or exchange, it had not included the sale. Therefore, where sale became a necessity, courts had to be approached. This difficulty has now been removed.
All in all, the highly praised 1954 Act and its amendment appear to have failed to create an efficient waqf system for India. Indeed, it has been conceded that despite these powers, the Waqf Boards have not been effective. Independent authors attribute this to the insufficiency of the contribution of each waqf to the boards. They argue that; the five percent of each waqf’s income allocated to the waqf board is insufficient and that this amount should be increased.
They also observe that the boards have shown themselves to be administratively inefficient, financially weak and virtually the cesspools of corruption and nepotism. They have consistently failed to play any significant role in the socio-economic resurrection of the community. The internal dissentions and groupism among their members, the suppression of one board by another are only two among many maladies which prove that they have failed in justifying the confidence reposed in them by the community. More specifically, the Boards have been accused of failing in their most important function: auditing. The Bihar Board appears to have been particularly negligent. In response, the Bihar Government was forced to supersede the Bihar Subai Sunni Majlis-e-Auqaf with effect from April 1971 (Rashid, JIMMA: 56-57). But the Bihar Board was by no means the only culprit. Indeed, the Punjab, Tamil Nadu and Andhra Pradesh Waqf Boards were also superseded for more or less the same reasons. Having analysed 18 state boards, Rashid has come to the conclusion that most boards have been ineffective in auditing and since “Audit of accounts is the only reliable means for a Waqf Board to know whether mutawallis are fulfilling the objects of waqf according to the founders’ wishes … if this fundamental duty is not discharged by the Waqf Boards, … they hardly justify their existence” (Rashid, JIMMA: 57).
The solution Rashid and others offer, however, appears to be more of the same medicine; replacement of the present outmoded system with a new, rigorous and effective one (Diwan, 1992: 171). We are left in the dark, however, about what this system would be. It is to be feared that the “new rigorous system” would simply be even more, yet ineffective, state control.
Indeed, further attempts at more vigorous control were made with the establishment of the Waqf Section of the Government of India in 1958. After organising a conference and some initial activity, this body has not been effective since 1974. In 1961, still another government body, the Central Waqf Advisory Council was established and granted statutory status by the Government of India. The Council was to give advice to the Government on waqf affairs, to take steps for the betterment of the community etc.. To fulfil these objectives the Council was allocated one percent of the annual income of every waqf board as well as some government grants and interest income. But this body also failed to fulfil its mission and led Rashid to conclude;
“But when all is said and done the Council has generally failed to come up to expectations” (Rashid, JIMMA: 59).
Almost no one seems to have noticed the dilemma in state control: effective state control necessitates an army of inspectors who are assumed to be honest individuals. After making this heroic assumption, those advocating more and more state control through agencies each with a fancier name than the other, tend to forget that there is a basic trade off between controlling the waqfs and the fulfilment of their objectives. Since, these state agencies are financed by the waqfs themselves, deducting more from their revenues in order to control them becomes self defeating and simply leads waqfs to spend less on their primary objective; charity. No one seems to think of improving the waqf system by granting them more, not less, autonomy.
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.