On Waqfs
Undermining Religious Rights?
I Mallikarjuna Sharma
In Islamic law, WAQF is the
permanent dedication of property
for charitable, religious, or pious purposes. The word “waqf” comes from the Arabic word waqufa, which means “to detain” or “to hold”. According to Wikipedia it is also called a (plural or), or mortmain property, which is an inalienable charitable endowment under Islamic law. –that the term waqf literally means ‘confinement and prohibition’, or causing a thing to stop or stand still... once an asset has been donated as waqf it cannot be sold, transferred or given as a gift. Once a waqif has verbally or in writing declared a waqf property, it is legally conceived as the property of Allah and must be used to “fulfill public/family needs” as a charitable social service. A waqf property can be of two categories: movable or immovable. A ‘movable’ asset includes money or shares which are used to finance educational, religious or cultural institutions such as madrasahs (Islamic schools) or mosques. The madrasahs and mosques themselves are an example of an ‘immovable’ asset which refers to land or structures open for public use. An important function of the latter is also to provide shelter and community spaces to the poor, also known as the mawquf ‘alayh (beneficiaries). Waqf is defined as a system comprising three elements: hayrat, akarat, and waqf. Hayrat, the plural form of hayr, means ‘goodnesses’ and refers to the motivational factor behind the vakýf organisation; akarat refers to corpus and literally means ‘real estates,’ implying revenue-generating sources such as markets (bedestens, arastas, hans, etc.), land, and baths; and waqf, in its narrow sense, is the institution(s) providing services as committed in the vakýf deed, such as madrasas, public kitchens (imarets), karwansarays, mosques, libraries, etc.–that generally, the waqf must fulfill three primary constraints: 1. The one endowing the waqf, and its subsequent maintainers, should sequester the principal and allocate the proceeds to charity. 2. The endowment should legally be removed from commodification, such that it is no longer on the market. 3. Its sole purpose must be charitable, and the beneficiary group must be named.
For one thing Waqfis to be distinguished from Zakat; Waqf is a not mandatory but a voluntary donation, whereas every Muslim who has a minimum amount of wealth (nisab) is commanded to donate a part of his property for charitable purposes. So, Zakat is a mandatory donation of a portion of a Muslim’s wealth to charity, and is one of the five pillars of Islam: it is an Arabic word that means “giving to charity” or “giving to the needy”. It is a religious obligation for Muslims who meet certain criteria. Eligibility: Muslims who have a minimum amount of wealth, known as the Nisab, must pay Zakat. The amount to pay is typically 2.5% of a Muslim’s liquid assets. When to pay: Zakat is due once a year, after one lunar year has passed since meeting or exceeding the Nisab. There is no set time frame for payment, but it’s most commonly given during Ramadan and the Hajj pilgrimage; What to donate: Zakat can be paid on a variety of assets, including food grains, fruit, camels, cattle, sheep, goats, gold, silver, and movable goods. How to distribute: Zakat is distributed to the poor, travelers, refugees, displaced people, and others who meet the criteria. How to use: Zakat aid must be used within one lunar year of when it was given. It cannot be used for infrastructure or administrative costs.
There is no direct Quoranic injunction for Waqf but as per Wikipedia, it can be inferred from certain ayat in Surah Al-i’-Imran (3:92): “You will never achieve righteousness until you donate some of what you cherish. And whatever you give is certainly well known to Allah.” Their formal conception in Islamic society has been derived from a number of hadiths. It is said that during the time of Muhammad, after the Hijrah, the first waqf was composed of a grove of 600 date palms. The proceeds of this waqf were meant to feed Medina’s poor.
It is clarified that a waqf is a contract; therefore, the founder (called al-wâqif or al-muabbis in Arabic) must be capable of entering into a contract. For this, the founder must: 1. be an adult; 2. be of sound mind; 3. be capable of handling financial affairs and 4. not be under interdiction for bankruptcy. Although waqf is an Islamic institution, being a Muslim is not required to establish a waqf, and dhimmismay establish a waqf. Finally, if a person is fatally ill, the waqf is subject to the same restrictions as a will in Islam.
During Islamic invasions in India vast properties of people of the majority community and other religious communities were gulped by the invaders and, out of those, considerable properties donated for the Islamic religious purposes, and mainly for Waqfs. The Mughal Emperors were recognised sovereigns all over India and all other native princes, mostly, paid tributes to them and also ran their administrations as tributaries to the Empire. Even the British when they first came to India through East India Company mainly as merchants had to pay obeisance to the Emperor and collect the revenue and taxes for him and other Nawabs as their ‘tributaries’ in deed. Also the religious injunctions influenced the Islamic wealthy to donate considerable properties for the Waqfs. Cumulatively all this made the Waqfproperties in India quite large and the Central Waqf Council seems to be the biggest urban landlord in India. However, there are innumerable encroachments of the said lands also and whole villages where farmers have been conducting agriculture since many decades are in reality declared as waqf properties and the Waqf Act even bars judicial intervention (of course not the extraordinary jurisdiction of High Court and Supreme Court which is a part of the basic structure of the Constitution) and makes the decision of Waqf Tribunals final. Section 40 of the Waqf Act 1995 is very contentious:
“40. Decision if a property is [waqf] property. – (1) The Board may itself collect information regarding any property which it has reason to believe to be [waqf] property and if any question arises whether a particular property is [waqf] property or not or whether a [waqf] is a Sunni [waqf] or a Shia [waqf], it may, after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.
(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is [waqf] property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is [waqf] property, call upon the trust or society, as the case may be, either to register such property under this Act as [waqf] property or show cause why such property should not be so registered:
Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered.
(4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal.”
[Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013).]
Though, no doubt, there are certain advantages to the disadvantaged and poorer sections of Muslims by the institution of Waqf, yet its working has generally affected by the people of other communities in India, especially the majority community in an adverse manner, since, after all, they were conquered people at the mercy of their conqueror–the Muslim invaders first and later the Mughal Empire for the major part of the medieval ages, especially so in North India. Its adverse effects can be noticed even today even in the extreme South because of the once-upon-a-time rein of Muslim kings there and their bestowal of large properties [plundered from the majority and other communities] to waqf donations.
“Early references to waqf in India as can be found in the 14th-century work Insha-i-Mahru by AynulMulkibnMahru reveal that Muhammad of Ghor dedicated two villages in favor of a congregational Mosque in Multan, and, handed its administration to the Shaykh al-Islâm (highest ecclesiastical officer of the Empire). In the coming years, several more waqf were created, as the Delhi Sultanate flourished.
As per the Wakf Act 1954 (later Wakf Act 1995) enacted by the government of India, waqf are categorized as (a) waqf by user such as graveyards, Musafirhanas (Sarai) and Chowltries etc., (b) waqf under Mashrutul-khidmat (Service Inam) such as Khaziservice, Nirkhi service, Pesh Imam service and Khateeb service etc., and (c) Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith and kin and for any purpose recognised by Muslim law as pious, religious or charitable. After the enactment Wakf Act 1954, the Union government directed to all the states governments to implement the Act for administering the wakf institutions like mosques, dargahs, hussainiyas, graveyards, takhiyas, eidgah, anjumans, and various religious and charitable institutions. A statutory body under Government of India also oversees State Wakf Boards. In turn the State Wakf Boards work towards management, regulation and protect the Wakf properties by constituting District Wakf Committees, MandalWakf Committees and Committees for the individual Wakf Institutions. As per the report of Sachar Committee (2006) there are about 500,000 registered Wakfs with 600,000 acres (2,400 km) land in India, and Rs. 60 billion book value.”
It will be apt to quote here major excerpts from a perspicacious analysis and bitter comments made by a Muslim scholar in a net debate over whether WaqfCouncils need be disbanded for their inefficiency and injustice. [http://www. anindianmuslim. com/2009/08/should-waqf-boards-be-disbanded-in.html]:
“Tuesday, September 01, 2009: Waqf Woes: Corruption, mismanagement in Waqf Boards, encroachment on land-properties a major issue in India;
It is true that the Waqf properties in India are so huge that they are enough to finance the educational and social needs of Muslims, however, gross corruption in most of the Waqf Boards and the greed of officials has wrecked the system.
For over a millennium, Muslims in India have been setting aside property [or part of property] and pledging it, in the name of God, for charitable works. The purpose was that the earnings would go to the upkeep of orphans, widows and for other social causes. Even in rural areas there are waqf properties that can fetch earnings to the tune of crores.
But this money that should go in establishment of orphanages, opening charitable hospitals, schools, colleges, disbursing pensions to destitutes and scholarships to poor students, is mostly gobbled by the corrupt bureaucracy.
How the earnings from Waqf properties is siphoned off? Here are just a few examples:
1. Commercial establishments and shops on Waqf properties [like the shops around mosques or grave yards] are let out to relatives on nominal rent, sometimes as low as Rs 50 or 100. That’s because the corrupt waqf officials take bribes to let out shops.
2. The corrupt ‘mutawallis’ [caretakers] and those in district waqf committees, even sell the Waqf land or ‘allow encroachment’, as they are in cahoots with encroachers. Often the caretaker himself grabs the land.
3. The legal cells don’t fight cases. Lawyers of Waqf Boards are often ‘bought’ by the other party that has encroached a property and sold it after constructing a multi-storey complex on it.
4. Political-bureaucratic-land mafia nexus is always eyeing the Waqf land.
Though a waqf property cannot be sold or its use changed till eternity, the exact opposite happens, because lands are mostly in prime locations. They are given on lease in lieu of money that goes in the pockets of officials.
If cases go to courts, the files disappear and lawyers often don’t put up defence.
5. In states where the upright officials want to pursue cases, the district administration doesn’t take interest, citing that removal of encroachments may lead to law-and-order issue.
The collectors, DMs, ADMs and tehsildars aren’t interested enough to take the help of police and municipal corporation, to execute the anti-encroahment drive. The earning from Waqf properties could be to the tune of tens of crores from any of the big states in India, but mostly the boards are in loss.
In case of an old mosque, there are nearly 100 shops on the ground floor, basement and on the land around the mosque. However, the rents were last fixed in pre-independence era and continue to be Rs 5-Rs 18.
The traders who earn lakhs a day because they sit on the most precious property in a town, won’t pay more rent as the Board doesn’t want it either. The officials go routinely every year and ‘settle’ the matter ‘unofficially’.
The property of Dargah Baba Kapur on the border of Uttar Pradesh and Madhya Pradesh is huge. The waqf land is spread to over 500 villages. But not a penny reaches the Board. All money goes to a pre-independence era department and the Board never showed inclination to fight the case or get the revenue that could be spent on charitable works.
Wrecking the Waqf
Unfortunately, most of the corrupt officials in the Waqf Boards are Muslim. They understand the religious and social implications of the corruption but stilly they may not just change the intent of the ‘waaqif’ [the person who had endowed the property] but also sell it illegally.
For example, if a widow dies, and before his death she had pledged that her land should be deemed Waqf property, and a girls’ school ought to be founded on it, it is not possible to change the intent. But it is routine to find the land leased to a builder or shops constructed over it.
What a shame! Blaming the government is wrong, as the levels of corruption and immorality among society is responsible for wrecking the Nizam-e-Awqaf [Auqaaf]. The apathy of Muslims is astonishing to say the least.
The truth is that the prime property of Waqfs [like the land in Mumbai where Mukesh Ambani’s colossal building came up] is worth billions in each state, but is getting encroached, sold and wasted by the day. [See https://www.rediff.com/money/2007/jul/06ambani.htm-Ed.]
Sadly, in large states like UP, Bihar, Maharashtra, West Bengal and the Delhi-Punjab area that has huge waqf land, corruption on hitherto unimaginable proportions, has reduced the Waqf Boards to a status where they are permanently in debt and eternally crisis-ridden.”
The Waqf (Amendment) Bill, 2024 was introduced in the Lok Sabha on 8 August 2024. It seeks to repeal Mussalman Wakf Act, 1923 and amend the Waqf Act, 1995. The Act regulates waqf property in India, and defines Waqf as an endowment of movable or immovable property for purposes considered pious, religious, or charitable under Muslimlaw. Every state is required to constitute a Waqf Board to manage waqf. The Bill renames the Act to ‘United Waqf Management, Empowerment, Efficiency and Development Act, 1995’ (UWMEEDA 1995). The Act allows 1. waqf to be formed by: (i) declaration, (ii) recognition based on long-term use (waqf by user), or (iii) endowment when the line of succession ends (waqf-alal-aulad). The Bill states that only a person practicing Islam for at least five years may declare a waqf. It clarifies that the person must own the property being declared. It removes waqf by user. It also adds that waqf-alal-aulad must not result in denial of inheritance rights to the donor’s heir including women heirs. 2. Omitting the provisions relating to the “waqf by user”. 3. Providing the functions of the Survey Commissioner to the Collector or any other officer not below the rank of Deputy Collector duly nominated by the Collector for the survey of waqf properties. 4. Providing for a broad based composition of the Central Waqf Council and the State Waqf Boards and ensuring the representation of Muslim women and non-Muslims. 5. Providing for establishment of separate Board of Auqaf for Boharas and Aghakhanis. 6. Providing for representation of Shia, Sunni, Bohra, Agakhani and other backward classes among Muslim communities. 7. Streamlining the manner of registration of waqfs through a central portal and database. 8. Providing for a detailed procedure for mutation as per revenue laws with due notice to all concerned before recording any property as waqf property. 9. Reforming the Tribunal structure with two members and providing for appeals against the orders of the Tribunal to the High Court within a specified period of ninety days. 10. Omission of section 107 so as to make the Limitation Act, 1963 applicable to any action under the Act; and omission of sections 108 and 108A relating to special provision as to evacuee waqf properties and Act to have overriding effect. [Section 40 of the Act also seems to have been omitted – Ed.] 11. Renaming of the Waqf Act, 1995 as the Unified Waqf Management, Empowerment, Efficiency and Development Act, 2024. A 31-member JPC has been established to review the Waqf (Amendment) Bill, 2024. The committee will comprise 21 members from the Lok Sabha and 10 from the Rajya Sabha. The formation of the committee was announced by MoMA Kiren Rijiju on 9 August 2024. Trinamool Congress MP Kalyan Banerjee boycotted the JPC meeting. The opposition parties have accused the government of trying to undermine the religious rights of Muslims through this amendment. The government, on its part, has claimed that this legislation is aimed at enhancing “the efficiency of the administration and management of the waqf properties.” But following a public outcry, the draft Bill has been referred to a Joint Parliamentary Committee (JPC) for closer scrutiny. When the JPC sought written suggestions from the public, it received a staggering 1.2 crore suggestions. Earlier this week, when the JPC gathered for a meeting, the Opposition members of the Committee walked out, alleging that the panel was not functioning as per the rules and regulations. What exactly does the proposed Bill seek to do? What are the objections to it? Did the government involve Muslim stakeholders before or while coming up with the draft Bill? And what’s the way forward?
Alarmed by the Waqf(Amendment) Bill, 2024, Muslim groups from Telangana have teamed up to oppose it. They have launched an awareness campaign against the proposed legislation, and are submitting representations to the Joint Parliamentary Committee that is currently reviewing the Bill. And objecting to the proposal of including non-Muslims in Waqf boards, the Muslim law board chief–Maulana Khalid Saifullah said the government’s only aim was to snatch Waqf lands from Muslims. And declared “We will stop Waqf bill, it is a matter of life and death for us”! Particularly he was sore at including some non-Muslims in the Waqf Boards (perhaps government circles cite the need for including them because there are not that sufficient number of Muslim officers to represent the official side!?). “If it’s (waqf boards) management is done by non-Muslims, will they sympathise with your mosques and graveyards? The result will be your land will be taken away from you... This is a very dangerous law,” he said. “In Tamil Nadu itself there are 4,78,000 acres of temple land. In Andhra Pradesh, there are 4,68,000 acres of temple land. Both these states have 10 lakh acres of temple land. If Muslims have six lakh acres of Waqf land in the whole country, then what is the problem?” Saifullah further said.
Another article by PrafulGoradia on this topic which scathingly criticizes the Waqf Act and current practices and even calls for total abolition of Waqf laws needs mention. He writes:
“The Waqfs are the biggest urban landlords in India. Their origin dates back to the life and times of Prophet Muhammad. The institution began with a place called Khaybar in Arabia. It was the genius for turning a conquered property into an inalienable ownership. [Asaf AA Fyzee, Outlines of Muhammadan law, Oxford University Press (OUP), Delhi, 1999.]
Joseph Schacht, an international authority on Islamic law, in his book, originally published by OUP in 1964, said, “The Waqf has one of its roots in the contributions to the holy wars which Muhammad had incessantly demanded from his followers in Medina”. For one thing, a Waqf property is an outcome of conquest. If any further proof of expropriation was required in this context, the temple-turned-mosque provides it. The corollary of this development would be that the conflict over the temples should extend to question the validity of the institution of Waqf itself.
Uncannily, none other than the Caliph of all Sunni Islam and the Ottoman emperor thought it fit to abolish the institution in his empire in 1917. Thus, there are no Waqfs in Turkey, libya, Egypt, Sudan, Lebanon, Syria, Jordan and Iraq. In 1956, on the morrow of Tunisian independence, President Habib Bourguiba abolished Waqfs.”
“For India, there are several other arguments that support the abolition of Waqfs. The dispute over a Waqfin the late 19th century eventually went up to the highest court of appeal, namely the Privy Council in london. The four British judges described the Waqf as “a perpetuity of the worst and the most pernicious kind” and declared it to be invalid. In the Privy Council, the judges were lord Watson, lord Hobhouse, lord Shand and Sir Richard Couch.
“Waqfs in India date back almost to the beginning of the Sultanate of Delhi. S Athar Husain and S Khalid Rashid, in their work, Waqf laws and Administration in India, Eastern Book Company, lucknow,1968, have traced their history. According to them, Sultan Muizuddin Sam Ghaor dedicated two villages in favour of the Jama Masjid of Multan and handed its administration to Shaikhul Islam.
“Another commentator, Ahmedu-llah Khan has recalled several properties which were brought under Waqf much earlier. For example, the dargah of Moinuddin Chishti at Ajmer Sharief as well as Nagaur in Rajputana, Hansi and Ajodhan in Punjab, the dargah-i-Sabiri at Kalyar and the dargah of Shaykh Ahmed’ Abdal Haqq at Rudauli. The Government of independent India found it expedient not to interfere with the operation of the Waqf laws. Political expediency dictated this unfortunate approach just as Article 44 of the Constitution with regard to the personal law of the Muslims has remained a pious lip-service.”
[A historical perspective on Waqfs in India, Monday, 14 May 2018 by PrafullGoradia; https:// www.daily pioneer.com:443/2018/columnists/a-historical-perspective-on-waqfs-in-india.html]
Waqf is in general only a gift from a Muslim to his religious cause. Of course, other religionists can and may also donate [only] if they believe in Islamic principles. But that community here cannot take defence of their kings/oligarchs of the yore having donated huge assets– got mainly by plundering the poor, oppressed Hindu majority people– abusing their powers, etc. Short of total abolition, Waqfmatters need to be strictly regulated, with the wings of the Waqf Boards sufficiently clipped.
[Sources: Wikipedia, etc] [I. Mallikarjuna Sharma, Advocate, Editor, LAW ANIMATED WORLD]
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