Politics behind ‘redress’ of waqf property rows

UNION Home Minister Amit Shah asserted on November 15 the determination of Prime Minister Narendra Modi to amend the Waqf Act, 1995, despite resistance from key Opposition leaders. The Union Government's push to amend the Act is ominous. The apparent intention behind the move is to reduce the Waqf Board's control over its assets, which are the third largest in the country, after those of the Railways and the defence establishment.

The glaring politics behind the thin veil of noble intentions of redressing 'the issues and challenges in regulating and managing Waqf properties', as the government's statement on the issue, is evident from the recent events.

The claims of there being temples beneath historic mosques and shrines — from Sambhal in UP to Mu'in al-Din Chishti and Adhai Din Ka Jhonpra in Ajmer, Rajasthan — are affectations of a concerted otherisation.

A distinct intensive effort to tar the Muslim community of the country as one carrying the historical legacy of temple demolitions for constructing mosques and, in recent history, sitting on enormous land assets and still whining is conspicuous.

Originating from the Arabic word 'waqufa', meaning to detain, hold or tie up, waqf is the permanent pledge by a Muslim person of his property, movable or immovable, for a pious, religious or charitable purpose under the Islamic law. Once pledged, such a property can neither be sold nor donated or used for any other purpose. Allah being an inchoate and ethereal entity, a 'waqif' creating a waqf for the benefit of the people appoints a 'mutawalli' for the management of the waqf. Once the waqif transfers the property to Allah, it becomes irrevocable.

Waqfs, however, are not universal to all Islamic countries. Libya, Egypt, Sudan, Lebanon, Syria, Jordan, Tunisia and Iraq do not have them. The history of waqf is traced back to the Ottoman Empire. Thus, the Islamic countries that fell under this empire have waqf in some form or the other.

Waqf in India goes back to the period of the Sultanate, to the reign of Sultan Muizuddin Sam Ghaor in the late 12th century. He dedicated two villages for the upkeep of the Jama Masjid of Multan. With the consolidation of the Muslim rulers in India, waqfs and properties under them expanded.

During the British rule, a dispute over a waqf property in the late 19th century landed in the Privy Council. The Bench of four British judges declared the waqf invalid, describing it as 'a perpetuity of the worst kind.' However, that decision was not accepted in India. The Mussalman Waqf Validating Act, 1913, retained the institution and the waqfs continued after Independence.

The Government of India's statement attributes the 'strengthening' of waqfs since the Waqf Act, 1954, under which the Central Waqf Council of India was created in 1964. It says that the Waqf Act of 1995 made it 'even more favourable to Muslims.' It led to the strengthening of the waqf council, the state waqf boards, the chief executive officer and the duties of mutawalli. Further, the waqf tribunals were deemed to be civil courts.

An amendment in 2013 made the management more efficient and transparent. The Waqf Repeal Bill, 2022, and amendment to the Waqf Act, 1995, tabled in the Rajya Sabha on December 8, 2023 are efforts towards doing away with the waqfs or neutralising their roles in the ownership and management of such large chunks of land and property.

The Waqf Bill, which is currently with the Joint Parliamentary Committee (JPC), has the following four main features:

l The Bill changes the composition of the Central Waqf Council and waqf boards to include non-Muslim members.

l The survey commissioner has been replaced by the collector, granting him powers to conduct surveys of waqf properties.

l Government property identified as waqf will cease to be waqf. The collector will determine the ownership of such properties.

l The finality of the tribunal's decisions has been revoked. The Bill provides for direct appeal to the high court.

Clearly, as put in the historical context in the government's statement, the waqfs have been portrayed as an Islamic legacy — the legacy of the invaders.

The stress on including non-Muslim members conveys the impression that these bodies, with such rich assets, are prone to misusing the resources.

The inclusion of different sections of Muslims, women in particular, would certainly create a representative set-up and is desirable.

However, replacing the survey commissioner with the district collector concerned for conducting surveys of waqf properties is a move meant to create a close and day-to-day surveillance mechanism under the respective state governments.

The phrase 'government property identified as waqf' creates an impression that the waqfs are prone to encroachment of public land. If there are individual cases of such impingements, they must be checked. But to put it in a legal instrument demonises an institution linked to a community which has been under pressure for over a decade.

Finally, while the provision for an appeal to higher courts is fine, the weakening of the sanctity of the tribunals is problematic.

The JPC has not been able to finalise the Waqf Bill for obvious reasons. While the objections of the opposition MPs are not known, the reason why it faced rough weather can be surmised.

Whether the JPC's extension will eventually iron out the differences is not known, but the Opposition has its task cut out. It must challenge the demonisation of the Muslims, as attempted by this legal instrument.