Introduction
The term waqf (plural auqaf) originates from the Arabic term Waqafa meaning therefore to detain or hold or tie up. The Waqf Act 1995 defines Waqf as “the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable…”.[1] It refers to a class of assets—land, building, tenancies, cash etc and not merely Muslim religious structures like mosques and dargahs. In India, a large bureaucratic scaffolding has been erected around the protection, preservation and expansion of waqfs. In Part-I of this work, I argue that the same is not necessary from the point of view of law, as the secular law of trusts is enough to deliver the outcomes that waqf are meant to deliver. In part-II, I take a historic look at the institution and argue that waqf in India have been used as an enabler of proselytisation, and the centralised and theocratically waqf management structure of medieval era has actually set a template that Islamist groups have demanded in independent India and obtained through the Waqf Acts. In part-III, I look into how waqf laws have developed and argue that it is procedurally inadequate, a refuge for Islamist politics and tends to create social conflict. The work ends with my recommendations and conclusions.
PART-I
THE CONCEPT OF WAQF IS LEGALLY REDUNDANT BUT USEFUL FOR IDENTITY POLITICS
There are three kinds of waqfs understood[2] by Indian law namely
- Waqf by user: Where any land or building or any portion thereof has been used permanently for any religious or pious purpose, with the concurrence or knowledge of the owner, then it will be treated as waqf by user.
- Waqf Mashrut-ul Khidmat: It is a public waqf where the wa’kifs (i.e creator of waqf) has devoted the property for the general benefit of the Muslim community and means a grant stipulated for rendering services.
- Waqf al-al-aulad: A waqf created for the wa’kifs family and children.
Waqfs can be created only for a pious purpose consistent with the Shariat.[3] The essential features of waqf are perpetuity, irrevocability and inalienability.[4] There is no formality requirement for setting up a waqf (like say creating a document, registration etc).[5] The dedication of a given property as waqf need not even be express, it can simply be set up through user or reputation.[6] Once it has been declared as waqf, it is vested with Allah (the Islamic deity) forever. Other communities in India do not have anything quite analogous to the waqf.
Conceptually, waqf can be seen as a form of a trust, with some differences. First, waqf is fundamentally faith based; there is no waqf outside a sharia sanctioned activity unlike a trust. The waqf presuppose an Islamic regime with a Qazi enforcing it; because unlike the trustee under s. 16, 20, 36 and 40 of the Indian Trusts Act 1882, the mutawalli have very limited powers similar to receivers under the CPC.[7] Second, unlike trusts which are not necessarily irrevocable or perpetual, these are essential characteristics of a waqf. Third, unlike trusts, especially public charitable trusts, there is no requirement of certainty (i.e. disclose a specific charitable intention). The amounts can be distributed using the doctrine of cy-pres.[8]
The most important difference perhaps is that the law of trusts is enforced by the civil courts[9] and have extensive substantive and procedural protections for the trustees, beneficiaries and innocent third parties. There are special provisions under s.92 & 93 of CPC for public trusts that can apply to a Muslim religious trust as well. The best way to see this from the point of view of a layman would be that waqf is a form of preto-trust, that essentially resides in a world of Dar al Islam[10] where the overwhelming theological benefit of the waqf overrides any other proprietary and social concern that may arise. The common law of trusts on the other hand since its canon law / equity law past[11] has travelled far, to become a truly fair, secular all weather doctrine, that strives to reconcile different kinds of social and political interests.
Notwithstanding the differences, the entire set of objectives of waqf can be served through the law of trusts and other secular laws.[12] The civil court is sufficient to decide the disputes and the Waqf Tribunal, strictly speaking is not really necessary either. The existence of a separate law of waqf can only be attributed to historical Muslim identity politics and Islamist demands. In the next two parts I identify how this state of affair came to be and where does it stand now.
PART-II
THE DARK COLOURS OF THE WAQF IN INDIAN HISTORY
I can presume that the purpose of the original creators of waqf was benign. But in India and globally, the institution has acted as an enabler to Islamic imperialism, proselytisation and appropriation of other denominational sites.
During the entire Sultanate and Mughal periods, both the sovereign and private individuals created waqfs[13]. Throughout this time period, waqf management displayed a centralised and theocratic form of management. At the grassroots level, the waqfs were managed by mutawallis supervised by the Qazis, and in the later Mughal period by a religious office called Sadr-as -Sudur.[14] The system was centralised insofar as the chain of supervision went up from the Qazis all the way to the Sultan (in Sultanate) and the Padshah (during Mughal rule).
The ranks of the Qazis and Sadr were taken usually from the Ullama (i.e Islamic clergy and scholars). The applicable law and the sitting judge were both committed to the Shariah and not to secular sense of fairness. Thus, in effect, these courts would have displayed an enormous prejudgment bias[15], regardless of the character and personal integrity of the judge. If a non-Muslim would plead proprietary or other interest in a property sought to be declared a waqf, the Qazi would balance the public policy imperative of waqf as a measure to spread of Islamic ideology, against the limited rights available to the dhimmi[16], and would have to decide in favour of the former. This logic would have operated with special force when the waqf land in question belonged to a former temple or religious establishment.
Another significant aspect of waqf in pre- British India was the close connection of this institution with proselytisation and religious and cultural appropriation. At the heart of this 700-year long proselytisation drive were the Sufis. There is an enormous literature on this theme, starting with Thomas Arnold’s portrayal of Sufis as Islamic “missionaries” among non-Muslims.[17] Later, revisionist historians have sought to dilute Arnold’s hard truth in favour of soft narratives. So Muzaffar Alam argues[18] that from 12th century onwards, Sufi orders (silsilas) began to expand, encouraging and promoting many beliefs held in common by Hindus and Muslims. Alam goes on to say that though some Sufis were puritanical and tyrannical, their general sense of moderation persuaded many Hindus to convert to Islam. Richard Eaton (an Islamophile and revisionist) calls this process “accretion and reform” whereby the Sufi saints would appropriate Hindu/local customs and nominally convert the population to Islam. Thereafter, later reform processes in Islam would convince them of the essential unity of Islam and they would become firmly integrated in the Muslim Ummah[19].
The Sufis worked as a network of Pirs/Murshids and disciples (Murids or Shagrids) who together formed a silsilah or tradition[20]. These Sufi networks were sustained through a special kind of waqf called wajh-i-ma’ash, which is a part of allowance for subsistence. Sometimes, certain Sufis were granted entire villages with some plots of uncultivated land (read forested land) with stipulation to bring it under plough.[21] Richard Eaton explains this process beautifully.[22] While taking the example of Chittagong and Sylhet, he shows that the spread of Islam in these areas were led by charismatic Muslim Pirs, who cleared the jungles and established Muslim settler societies, that would overwhelm the demographically sparse indigenous population (animist, Hindu or Buddhist), and slowly impose Islam. These settler societies lay the local mosque and the local congregation is supported by generous land grants.[23] The land grants were mostly in form of waqf.[24] Thus, waqf provided the multi-generational finance, necessary to the Sufi order to convert the Indians.
There is a tradition of demolition and conversion of other denominational sites in a waqf, globally. The Ka’ba[25] and Al-Aqsa Mosque in Jerusalem[26] are the most famous examples of this phenomenon. This process is subsumed in historical silence in this country. What was the prior legal status of the lands granted in waqf, in Sultanate and Mughal period? Richard Eaton sidesteps this question, as if the lands granted were terra nullis[27], just because they were forested. The most probable situation is that tribal communities, local Hindu peasant farmers and in some cases Hindu or Buddhist religious institutions had rival claims over these lands, which were suppressed by the Ulama dominated Qazis and local officials; only to be forgotten and denied later. Even now, claims to Hindu sites are made under the aegis of the waqfs. Such claims were made inter-alia in Ayodha Case[28] and in the Gyanvapi dispute[29]. Such claims were even made against national monuments[30]. The enactment of the Places of Worship (Special Provisions) Act 1991 has further enabled these aggressive claims. Even when the legal logic is weak, the idea of a property “belonging to Allah, perpetual and inalienable”, provide strong emotional and polemical force to these arguments.
PART-III
THE ORIGIN AND DISCONTENTS OF THE PRESENT WAQF ACT
After the fall of Muslim rule, the British were not generally supportive of the waqfs. Their attitude was reflected in the Privy Council decision of Abdul fateh Mohammad v Russomoy Dhur Chowdhury.[31] In the instant case, it was held that a waqf made for the aggrandisement of family and the gift to charity is illusory, whether from small amount, uncertainty or remoteness is invalid. This decision was furiously objected to by Muslim jurists who thought of it as contrary to Islamic law on waqf.[32] Thereafter, the Empire brought the Mussalman Waqf Validating Act 1913 (validating many waqf -al-al auld). Overall, the British empire generally dealt with cases through secular law, like the Official Trustees Act 1913, the Charitable and Religious Trusts Act 1920 etc.
Post Montagu–Chelmsford Reforms 1919, communal polarisation increased in Indian polity. The Congress, the Muslim League and the British started competitive ethnic bidding for the Muslims. This resulted in a spate of Waqf Acts like Bihar & Orissa Mussalman Waqf Act 1926, Bengal Waqf Act 1934, Bombay Mussalman Waqf Act 1935, United Provinces Muslim Waqfs Act 1936 etc. Though many of these Acts were repealed by the Waqf Act 1954 the basic features continue to exist in our law.
Post-independence, India enacted the Waqf Act 1954. The legislation, based on the earlier waqfs legislation, created a Waqf Board. This Board is essentially a political body which has been provided with a large array of executive and quasi-judicial functions. The most important powers of the Board is to supervise and if necessary remove mutawallis, to sanction “in accordance with Muslim law” any alienation of waqf property and defend suit on behalf of the waqf. It created a corpus of funds in hand of the Waqf Board and also created a requirement of compulsory registration of Waqf properties. The Waqf Boards were to be manned by MPs, MLAs, persons from Muslim organisations like the State Jamiat-ul-Ulama-i-Hind or State Shia Conference, or persons trained in Islamic law or law and finance. They all had to be Muslims.[33] A Central Waqf Council was added later by an amendment Act in 1969.
This Act created the economic and social power of the waqf. It created a mighty bureaucratic colossus in terms of Waqf Board which in principle is similar to the Mughal Sadr. The centralisation and pooling together of waqf resources concentrate enormous wealth in hands of the community that is not available to any other. From a strict economic point of view, the Waqf Act actually enhances the economic value of the assets by allowing the Waqf Boards to lease, mortgage or even sell waqf property. A property that cannot be alienated or transferred essentially has only a book value but no market value.
The Waqf Act 1954 can be seen as the beginning of appeasement politics in post-independence India. It contributed to the creation of Muslim politics centred around community property and community interests, which paved the way for the later rise of Islamist organisations like the AIMIM, AIDUF, AIMPLB etc. It is to be noted that the Waqf structure is a special treatment given to the Muslims. There are no analogous institutions for Hindus, Sikhs or Christians. The Sikh Gurudwara Act, 1925, merely pertains to the management of Gurudwaras and not the management of a whole class of property. While the post-independence Congress government was creating a Muslim power base, it was not half as generous to the Hindus. For Hindu temples, the law is still the Religious Endowments Act 1863, Indian Trusts Act 1882 and some state legislations like the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, that puts the Hindu temples and religious institutions under direct state control.
The Waqf Act 1954 was amended in 1964, 1969 and 1984; a major amendment in 1995 would have been sufficient. However, the so-called secular parties wished to virtue signal their Muslim vote bank and a new Waqf Act 1995 came into effect. The new Act added a new and dangerous innovation in terms of the Waqf Tribunal[34]. The tribunal has wide powers to decide matters pertaining to properties disputed to be a waqf property and interests involved in a property admitted to be a waqf property[35], lease, tenancy etc in a waqf property. The scope of exact jurisdiction of this court is to be decided by the state governments. The tribunal is manned by a judicial service personnel, a state civil service and one person who has specialised knowledge of Muslim law. The jurisdiction of the civil court is barred in matters covered by the Waqf Act 1995[36]. More ominously there is no appeal available from the decision of this tribunal or from any interim order by the tribunal[37]. This tribunal is not the Shariat court of the Qazi or the Sadr, but it is the nearest equivalent to the same in a secular country. Unlike the civil court that is directed towards giving justice, the tribunal is directed towards protection and better management of the auqaf; that is to say, this tribunal, by its very nature, is biased towards waqf. It is therefore far more difficult for innocent third parties to agitate their legitimate interests before this tribunal than the civil court.
The same Act also transferred many of the evacuee properties that were purportedly waqfs to Waqf Boards[38], thereby depriving many Sikh and Hindu refugees who had taken shelter there since partition. The Hindu Devottar properties in Pakistan and Bangladesh never received such special treatment. However, no matter how many amendments are made, more and more concessions continued to be demanded. The Sachar Committee report[39] added fuel to this fire. It was found that the total area under Waqf properties all over India is estimated at about 6 lakh acres and the book value at about Rs 6,000 crore.[40] This is the third largest land holding after Defense and Railways. Sachar was obsessed with using the waqf as a tool for community development, as theme directly lifted out of Islamic economics. It is moot to ask, if the Indian state has ever sought to use “community assets” similarly for upliftment of any other community – say Hindus? Anyway, it was successful in triggering the draconian 2013 amendment to the Act. It created penal consequences for illegal alienation on waqf properties[41] and extremely draconian provisions for removal of encroachments.[42] Many of these encroachers might actually be the poorer members of the “community” that it seeks to protect. However, the biggest legacy of the 2013 amendment is to ring-fence the waqf properties from any claim of national development. Waqf lands cannot be acquired except under very onerous and unviable circumstances.[43] Considering most of the waqf land is in urban areas, this has created a structural impediment for urban development in India.
So finally, how does the waqf machine works? It can be understood with an illustration.
Consider Mr. X[44] has a land near Mr. Y’s land[45]. The lands are not well demarcated, and possibly disputed. Mr. Y created a waqf on, Mr X’s land, say by urging that the land is a burial ground, making himself or some connected person the mutawallis. This is possible since waqf can be created by user and no documentation is necessary. He then gets it registered with the Waqf Board[46]. The board is obligated to make enquiries about the land and Mr. X, if he would know, may even resist the registration. However, once again the Board has full powers to decide on whether the land is indeed a waqf property or not.[47] The Waqf Board as specified earlier is a political body with a mandate to protect and promote waqfs. Therefore, the proceeding before the Body is no more likely to result in a just outcome than before the mediaeval Qazi. The State administration is legally bound to follow the direction of the Waqf Board.[48] Mr X would have a small window appeal to the tribunal, an entity that also suffers from heavy prejudgment bias. There is no further statutory appeal from its decision. It will be particularly hard for Mr. X if the land has been demarcated as a waqf, (based on the registration by the Board) by the state survey of waqfs u/s. 4 of the Act. In between all this, Mr. X would be not only confronting Mr. Y but the entire waqf bureaucracy backed by the Waqf Fund and thousands of staff. He would also be intimidated with criminal prosecution that the 2013 amendments have added to the Act. Off course, Mr. X can offer bribes to Waqf officials and get out of the web. The Waqf Board is a wonderful source of corruption!
This land grab is not a figment of imagination. OPIndia cites at least 21 high profile instances where the Waqf Board has sought to register public or private lands as waqfs.[49] This includes an entire Hindu village in Tamil Nadu, government buildings in Surat, the so called Idgah Maidan in Bengaluru, Jathlana village in Haryana among others. These instances constitute a tip of the iceberg. The three most common forms of land grab seem to be claiming a land as Qabaristan (graveyard)[50], creating small Dargah’s and offering prayer in public lands (this can be later claimed as waqf through user). These incidents show that the ill-adjusted legislation and the corrupt land grabbing elite it has created, is a perfect recipe for social conflict and communal disharmony.
CONCLUSION & RECOMMENDATIONS
The institution of waqf is legally unnecessary. The existence of the legal institution of waqf as well as the bureaucracy of the Waqf Board only make sense, as an identity issue and as a rotten borough for Islamist politics. But it may be noted that the in a secular country, only a rational legal system law must serve the common good and not act as a mere “identity marker”. The law of waqf as it stands today is dangerous for public peace, communal harmony, violates private property rights and potentially encourages extremist politics.[51]
The Waqf Act 1995 and waqf jurisprudence as it stands today, is clearly violative of right to equality under Article 14 in as much it creates a special system of procedural and substantive protection for a class of assets and religious establishments of one community, to the exclusion of all others.
An outright repeal may take time. In the meantime, there are a range of options that must be explored immediately. The first is to remove the extraordinary jurisdiction of the tribunal and restore the power of the civil court. Second, strong protection of third-party rights must be incorporated during the period of registration of waqf. An Ombudsman may be appointed to protect third party rights in waqf. Third, the bar on the acquisition of waqf land for public purpose may be removed. Finally, the Waqf Board must be prevented from claiming any waqf that predates the 1995 Act and was not registered at the point of its enactment. This would prevent the Board from making crackpot demands on historical monuments and government buildings. I believe it can also be seen through the lens of Article 44 that mandates the state to enact Uniform Civil Code for all communities. The discourse on UCC should travel outside personal laws and include waqf as well. In an ideal world the Waqf Act 1995 ought to be repealed, to be replaced with a common system of Trustees of Religious Endowments.[52]
Author Brief Bio: Prof. Suvrajyoti Gupta is Associate Professor at Jindal Global Law School, OP Jindal Global University.
References:
[1] S. 2(r) of the Waqf Act 1995
[2] AHMEDULLAH KHAN, COMMENTARY ON THE LAW OF WAQF (Asian Law House, 2017) (henceforth referred to as Khan 2017 )
[3] ASAF ALI ASGHAR FYZEE, OUTLINES OF MOHAMMEDAN LAW, 284 (Oxford University Press, 1974); This includes waqfs made for religious wars.MA Quereshi Law of Waqf , MUSLIM LAW ,514 (Central Law Publications , 2007), ( henceforth Quereshi 2007)
[4] Khan, 2017 at 4
[5] Traditionally waqfs were created in the mosque with Muzzeins declaration or waqafnamas.
[6] See the Privy Council decision in Mohd. Imadadullah v Mst Bismillah AIR 1922 PC 384. However once a property has become auqaf the Waqf Board is under a duty to register the same as per s.36 of the Waqf Act 1995
[7] Quereshi, 2007 at 536
[8] Cy-pres is a legal doctrine that gives courts the power to interpret the terms of a will, gift, estate, or charitable trust.
[9] Under s. 9 of the Code of Civil Procedure 1908 (CPC ) the civil court can decide all disputes of civil nature. Explanation I clarifies that , any property dispute or dispute over religious office comes within the purview of suits of civil nature.
[10] Dār al-Islam, in Islamic political ideology, the region in which Islam has ascendance
[11] Some jurists argue that the law of trusts originate from Waqf, but this claim may be taken with a pinch of salt.
[12] A Muslim can create trust. Kassimaiah Charities Rajagiri v. Secy, madras State Waqf Baord AIR 1964 Mad 18; Garib Das v Munshi Abdul Hamid AIR 1070 SC 1035
[13] See Khan , 2017 at 8
[14] Md. Thowhidul Islam Historical Development of Waqf Governance in Bangladesh: Challenges and Prospects Intellectual Discourse, Special Issue, 1129 , 1140 (2018)
[15] An attitude, belief, or impression formed in advance of actual experience of something.
[16] Protected people in an with second class rights, in exchange of jiziya
[17] See generally TW Arnold, THE PREACHING OF ISLAM: A HISTORY OF THE PROPAGATION OF THE MUSLIM FAITH,193 ( Library of Alexandria (17 March 2022)
[18] Muzaffir Alam. The Languages of Political Islam: India1200-1800 (London: Hurst & Co., 2004) 82.
[19] See generally the theories of conversion in Richard Eaton, Approaches to the Study of Conversion to Islam in India ( November 12th 2022), https://jan.ucc.nau.edu/~sj6/eatonapproachconversion.pdf
[20] The Sufis were and continue to be divided into major orders like Qadri, Chsiti & Nashbandhi which in turn were broken into dozens of branches. See generally CAMBRIDGE HISTORY OF ISLAM , 621-622 (Peter Holt, Ann K.S. Lambton, and Bernard Lewis. Edt , Cambridge University Press ) 621-622
[21] Ahmedullah Khan at 10
[22] Richard Eaton . THE RISE OF ISLAM AND THE BENGAL FRONTIER: 1204-1760 (Oxford India, 1993)
[23] See generally Chapter 9, The Mosque & Shrine in the Rural Landscape , THE RISE OF ISLAM AND THE BENGAL FRONTIER, 234-267
[24] Though Richard Eaton argues that these grants had the character of both an waqf and a grant. See THE RISE OF ISLAM AND THE BENGAL FRONTIER, 238 . However, I would argue that anything that has a character of waqf is essentially a waqf. It is immaterial what is the formal structure of the grant. Richard Eaton being a cultural historian probably does not understand legal conceptions that well.
[25] Khan, 2017 at 7. It was undoubtedly a ancient site of pagan worship.
[26] Part of the Jerusalem Islamic Waqf it probably stands on the site of the Second Jewish Temple
[27] Literally meaning no body’s land. This term have a pungent colonial past. Traditionally European settlers treated lands in the Americas and Australia as terra nullis , though clearly indigenous people had proprietary title over them.
[28] See M Siddiq & Ors v Mahant Suresh Das & Ors ( November 12th 2022), https://www.sci.gov.in/pdf/JUD_2.pdf
[29] The classic example of this remains the case of Gyanvapi Mosque. See Gyanvapi A Waqf Property, Only Waqf Board Can Hear Cases: Anjuman Intezamia Masajid, Times of India Oct 12, 2022, 20:53 IST
timesofindia.indiatimes.com/articleshow/94817653.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[30] The Taj Mahal has been declared as an waqf by the Sunni Waqf Board. The matter has been challenged before the courts by ASI ( November 11, 2022) https://www.news18.com/news/india/taj-mahal-a-waqf-property-bring-shah-jahans-signature-first-says-supreme-court-1714967.html
[31] Cal XVIII 399, 1894 22 , LA 76
[32] The court did apply the Islamic law or Mohamedan law as they called it. Its just that its interpretation was a common law one and not based on traditional Shariah jurisprudence.
[33] See s. 10 of the Waqf Act 1954
[34] S. 83 of the Waqf Act 1995
[35] Rashid Wali Beg v. Farid Pindari, 2021 SCC OnLine SC 1003
[36] S.85 of the Waqf Act 1995
[37] S. 83(9) of the Waqf Act 1995 . Compare this to
[38] S.108 of the Waqf Act 1995
[39] Government of India, Social, Economic and Educational status of Muslim Community of India, Report (New Delhi: Cabinet Secretariat, 2006), 219. (henceforth the Sachar Committee)
[40] Ibid at 219
[41] S. 52A of Waqf Act 1995 and s.54 of Waqf Act 1995
[42] S.55 and 55A of Waqf Act 1995
[43] S. 51 of the Waqf Act 1995
[44] Mr. X can well be a Muslim himself. Waqf administration is a state sponsored, elite driven machine that protects community interest and not necessarily members of that community. More importantly Mr. X can also be a public body like Municipal Corporation.
[45] This example presupposes the culpability of Mr. Y but remember that the Waqf Board can move suo motu as well and just imagine a doubtful waqf and try to grab a piece of land for the greater good of the community.
[46] S.36 of the Waqf Act 1995
[47] S.36 and 40 of the Waqf Act
[48] S. 28 & 29 of the Waqf Act 1995
[49] How Waqf Boards have been insidiously encroaching upon and occupying various properties and claiming their right over them, OP India, Oct 22, 2022 ( November 14th , 2022) https://www.opindia.com/2022/10/21-instances-when-waqf-boards-india-illegally-encroaching-various-properties/
[50] In Islam unlike Christianity a graveyard need not be attached to a mosque or consecrated ground. So it would not be improper for a Muslim to bury the body in any land provided the proper funerary rites have been performed.
[51] There is a theory in social science called the conveyor theory of radicalisation – it means one starts out with a minor functionary and a moderate organisation, to be progressively become more extremist in their views. Waqf administration is merely the entry point in the Islamist politics.
[52] There is indeed a Public Interest Litigation pending before the Supreme Court challenging the Constitutional validity of the Waqf Act. See Delhi HC seeks Centre’s stand on PIL against validity of Waqf Act , ( November 13th 2022), Delhi HC seeks Centre’s stand on PIL against validity of Waqf Act , The Hindu , May 12, 2022, ( November 13th 2022), https://www.thehindu.com/news/national/delhi-hc-seeks-centres-stand-on-pil-against-validity-of-waqf-act/article65407028.ece
