A look at the main features of the new waqf legislation and its discontents.
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THE Waqf (Amendment) Bill, 2024 has ignited intense debate, becoming one of the most controversial pieces of legislation ever, polarising constitutional liberties and exacerbating fears of bureaucratic overextension.
It is not just about the text of the law itself, but also about the narrative spun by various stakeholders— a narrative that often blurs the line between legitimate concern and conspiratorial encroachment.
This article unpacks the significant contributions of waqf, highlighting the real beneficiaries of the assets exposed. It provides a detailed examination of the Bill's provisions and legitimacy from the constitutional perspective.
The Waqf (Amendment) Bill, 2024 unleashed a storm of controversy in the Parliament. It is aimed at remediating the functionality of Waqf boards in India, according to the Union minority affairs minister Kiren Rijiju.
However, upon scrutiny of the draconian provisions of the Bill, the real story seems to be different. The flagrant intervention of the Union government in Waqf management raises queries worth contemplation concerning the legitimacy of the right to freedom of religion. The punitive move may prompt a direct invasion of religious autonomy and polarise the debate on constitutional liberties.
“It is not just about the text of the law itself, but also about the narrative spun by various stakeholders— a narrative that often blurs the line between legitimate concern and conspiratorial encroachment.
Understanding the terminology and historical origin of the 'waqf' is essential to grasp the key arguments highlighted in this context.
From the standpoint of Islamic jurisprudence, Waqf is an inalienable, irrevocable endowment, movable or immovable, whose ownership rights have been permanently devoted to Allah.
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It may be utilised for religious welfare purposes, and cannot be sold, gifted, inherited or encumbered. Section 3(r) of the Waqf Act, 1995 defines 'waqf' 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."
The first waqf was created when a Jew named Mukhairiq claimed to dedicate his seven orchards to Prophet Muhammad which he then established as charity or waqf.
Similarly, when Prophet Muhammad and his companions arrived in Medina, Uthman ibn Affan noticed a scarcity of water. To address this issue, he used his own money to purchase Ruma's well and dedicated it to waqf as narrated in the book of Hadith Sahih-al-Bukhari.
According to Abdullah ibn Omar, Omar obtained a property in Khaybar and came to the prophet for guidance. He said, "I have acquired land in Khaybar, never owned a more valuable asset than this. What is your advice to me?"
The prophet replied: "If you want, you can bequeath it, and give it as charity; provided that it should not be sold, bought, given as a gift or inherited." This too is narrated in Sahih-al-Bukhari.
The concept of waqf in India is deeply interwoven with the rise of Islamic rule, reflecting the philanthropic ethos of Delhi sultans.
Sultan Mu'izzuddīn Muḥammad Ibn Sām of the Ghurid dynasty set a legacy by donating two villages as waqf from his imperial treasury for the construction of the Jama Masjid in Multan.
As Islamic rule reached its zenith, waqf properties flourished, becoming a cornerstone of India's infrastructure and social legacy.
“Waqf is an inalienable, irrevocable endowment, movable or immovable, whose ownership rights have been permanently devoted to Allah.
In the colonial era, the British initially adopted a hands-off approach to Hindu–Muslim endowments. However, their need to regulate these possessions led to a series of legal interventions culminating in the Mussalman Wakf Act of 1932, which aimed to ensure transparency while preserving religious autonomy to regulate its affairs autonomously.
The status of waqf had transitioned from the colonial era to Independent India. The Indian National Congress government repealed the Mussalman Wakf Act, of 1932 in 1954 and introduced the Wakf Act of 1954, aimed at empowering waqf boards.
Later, the 1954 Act was amended in 1995 and 2013, it sought to establish a more robust administrative framework, while pledging to uphold religious autonomy by amending the definition of 'waqf' from "any practising Muslim" to "any person", thereby allowing interested people from different communities to contribute in waqf.
The historical trajectory of waqf reveals a complex interplay between government and religious endowments, where the State's role swung between control and preserving religious autonomy.
To ensure that waqf properties continue to serve their intended purpose, it is essential to encourage and pledge for waqf's autonomy which in turn upholds religious freedom.
In the matter of waqf, the most contentious issue is: who has benefitted from auqaf (the plural of waqf)?
Does it comprehensively fulfil the requisites and necessities of impoverished Muslim societies? Does it render quality education to the underprivileged young minds of the Muslim community? Does it facilitate proper healthcare, mosques and graveyards for the financially deprived Muslims?
The answer to this question may have two complex perspectives. Indeed, waqf assets have played a crucial role in the development of the Muslim community, contributing to the establishment of mosques, madrasas, educational institutions, graveyards, healthcare facilities and considerably beyond.
On the other hand, a pressing question arises: Are waqf properties being utilised entirely and exclusively for the upliftment of the Muslim community? This question is highly convoluted, considering that waqf has fervently devoted itself to the progress of Muslims.
Yet, in practice, these resources do not permeate to every indigent Muslim. Consequently, the question arises: Into whose coffers are these lands ultimately being directed?
The question of ultimately where these resources end up is complex and multifaceted. These resources are far from being the exclusive domain of any one person. Instead, they are dispersed among an ever-expanding web of beneficiaries. Both governmental hands and land-grabbing mafias take their share amid widespread exploitation.
“The first waqf was created when a Jew named Mukhairiq claimed to dedicate his seven orchards to Prophet Muhammad which he then established as charity or waqf.
In 2004, the Congress government in Andhra Pradesh under Y.S.R. Reddy sold 1,630 acres of prime land from Dargah Hussain Shah Wali's endowment, valued at ₹32,000 crore, to corporations and multinational corporations at a nominal price. Emaar acquired 400 acres, Microsoft 54 acres, Infosys 50 acres, Wipro 30 acres and Polaris 7 acres.
Prior to this, the Chandrababu Naidu government had transferred 1,100 acres of land to the Airport Development Authority of India. In Delhi, numerous significant waqf properties have been leased out at negligible rates— 86 properties have been leased for just ₹1 each and 110 properties on rents ranging from ₹11 to ₹127. In Uttarakhand, approximately ₹800 billion worth of endowment properties are largely under mafia control.
Underneath opulent corporate buildings, one might find the soil of waqf endowments. These assets, meant to serve the deprived, are often ensnared in bureaucratic red tape. For every mosque built that renders solace to the common Muslim, there are people left outside its doors; for every madrasa established, there are children who remain educationally deprived.
It is not only a matter of mismanagement, but an exposure of the disparity between the idealistic picture painted by the government and the reality of encroaching on the third largest land-owning institution in India.
The growing hostility towards waqf boards indicates the narrative battle against waqf which it seems to be losing. For instance, a senior Delhi waqf board official said, "People perceived us as ruthless land grabbers, however, in reality, we are unable to protect even our own lands from encroachment."
Similarly, a waqf official insisted his senior send some more officers with him as he was unsafe while visiting sites for inspection. A few officials had been physically assaulted while inspecting waqf properties. Amidst the allegations of mismanagement and land grabbing, waqf boards are struggling to assert their true identity and maintain their relevance.
At the heart of the controversy are the key factors for the proposed legislation of a new Bill, which is seen as a threat to the autonomy, sanctity and possession of waqf lands.
Upliftment of minorities
The major issue highlighted in the contentious debate is the growing rate of poverty among Indian Muslims, which some argue could be addressed by transferring waqf land to government control and utilising it for the upliftment of impoverished and poverty-stricken groups within the Muslim community.
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Since waqf is a private religious organisation, subject to certain laws, how does the Union government justify transferring its ownership for public welfare, which is indeed their duty?
This can be illustrated by comparing waqf to a private limited company established in an underprivileged area of a particular community. If the government seized possession of the company to address the community's impoverishment, would this be logically supported? If the government started acquiring private endowments to ameliorate public predicaments, what would be the necessity of taxes then?
Mismanagement of waqf properties
Persistent allegations of mismanagement, corruption and negligence have been made against waqf authorities in handling endowments. However, this assertion warrants a more detailed examination to uncover the shortcomings and the substantial endeavours made by waqf in stewarding these assets.
“The concept of waqf in India is deeply interwoven with the rise of Islamic rule, reflecting the philanthropic ethos of Delhi sultans.
The claim of mismanagement must be reconsidered, as attributing the issues solely to mismanagement ignores the broader context in which these officials operate. We cannot refuse the mismanagement that occurred under the guardianship of waqf boards; however, implementing tyrannical laws may blatantly attack the constitutional rights of Muslims.
Contrary to the claim of mismanagement, the waqf boards' contributions to managing assets for the development of educational institutions, mosques, graveyards, and other welfare programmes within the legal framework and ensuring no misuse of their authority, are commendable and noteworthy.
By casting a blanket accusation of mismanagement, the Union government appears to aspire to a harrowing encroachment on waqf lands. In focusing only on allegations of mismanagement, the government may inadvertently overlook Articles 25 and 26 of the Indian Constitution which guarantees to every citizen the right to practise and promote their religion and acquire property for the same.
Tribunals for waqf disputes
The Waqf Act of 1995 stipulated that in order to settle disputes pertaining to waqf properties in India, the state governments would establish a tribunal. In the instance a conflict arose over a waqf property's status, Section 7(1) of the 1995 Act provides that the tribunal's verdict would be final.
However, the proposed amendment Bill omits Section 7(1) of the 1995 Act and is being criticised for reducing the judicial independence of existing tribunals and causing fear of government overreach. The government's push for the Bill appears to be a strategy to centralise power and undermine minority rights.
Separate boards for Bohras and Aghakhanis
The Bill seeks to substitute the 'Waqf Act' with the 'Unified Wakf Management, Empowerment, Efficiency and Development Act', manifestly drafted to display the establishment of separate waqf boards and representation for Aghakhanis and Bohras as per Section 13(2A) of the Bill.
In contrast, the separation warrants a reconsideration, as it has the potential to fragment the Muslim community. Although imperfect, the existing waqf boards are significantly dedicated to rendering the utmost utilisation of waqf resources for the welfare of all Muslim sects inclusively.
Under the guise of 'unifying' the waqf boards, the proposed approach may lead to divisions in the Muslim community. The intention behind the provision of separate boards acknowledges the desire to implement the divide-and-rule policy to encroach on waqf lands.
Registration of waqf properties
Section 36(7) provided for mandatory registration of auqaf, repealing the previous Section, in which no government registration needed as formerly administered by the waqf boards, would be overseen by the district collector.
“Persistent allegations of mismanagement, corruption and negligence have been made against waqf authorities in handling endowments.
Inserting a clause for the mandatory registration of properties may overburden the office of the district collector, which in turn slows down the process of registration. Excessive government intervention in regulating a private entity under the guise of transparency and accountability may erode the religious autonomy of waqf boards.
Power of district collectors and CEOs
The power to identify whether a property is a waqf property or not has been designated to the district collector. Furthermore, the requirement that a chief executive officer (CEO) must be a Muslim has been removed, according to Note 1, Clause 15 of the Bill.
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The collector will adjudicate the ownership of waqf lands in case of an altercation. However, what happens when the collector himself has recklessly demolished a religious endowment owned by Muslims? In such cases, how can the government ensure that the collector will uphold the religious integrity of waqf in a transparent manner?
Appeal system
As per Note 1, Clause 35, the tribunal's ruling, which is considered final in the existing Act, has been omitted with a legalised system of appeals to the high court, correlating with the contraventions on waqf properties. The designation of the appeal system serves as an excruciating onslaught on judicial independence.
Inclusion of non-Muslims
Advocating for mandatory inclusion of two non-Muslim members in each waqf board as per Note 1, Clause 9,11 of the Waqf Amendment Bill, 2024 is a grave infringement of the right to freedom of religion as the institution needs experts in Muslim law and jurisprudence, practising Islam, for a transparent and reliable administration.
When the Bill creates this imperative for the waqif (the one who creates waqf) to be a practising Muslim, then the guardians of the waqf also must be Muslim.
“Although imperfect, the existing waqf boards are significantly dedicated to rendering the utmost utilisation of waqf resources for the welfare of all Muslim sects inclusively.
Would the same attitude be entertained in the case of other religious boards? Indubitably not. As Indian National Congress leader K.C. Venugopal argued, "Did the Ram temple committee include members from non-Hindu communities?"
The government must explain what is the need to include non-Muslims in a private religious affair.
Waqf by user
Waqf, being a historical legacy, may not maintain evidence of each and every property or asset from the period of its emergence. The type of property of which there is no record and which is used by waqf for welfare purposes is deemed to be waqf property, also called 'waqf by user', recognised under the Waqf Act of 1995.
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Although the present Bill has not recognised 'waqf by user', enabling the government to encroach on numerous waqf properties which have been utilised for centuries merely because of the unapproachability of the waqf deed is also not right.
Judicial review of unregistered waqf
The embedding of Clause 10 under Section 36 has scratched the authority of courts to adjudicate on cases or appeals filed on behalf of unregistered waqfs, six months after the enactment of the Act.
This amounts to a violation of the principles of judicial review. Also, it is practically impossible to register all unregistered waqf endowments within six months due to slow administrative setup.