In an interview to the NDTV, a claim was made by Asaduddin Owaisi that the Government has allegedly been involved in seizing control of properties not to its name in 6 states.^[1] More than 200 of the said properties lie in the national capital itself. A quick look at the Sachar Committee report confirms the AIMIM Chief’s claim.^[2] An occurrence more problematic than private occupation is the State’s encroachment on Auqaf, the same entity charged with the responsibility of guardianship of community interest. Who is the rightful owner of the property so seized? The Muslim community at large.

The lexical meaning of ‘Waqf’ is to ‘stop’ or ‘restrict’. Under Islamic Law, ‘Waqf’ is the irrevocable dedication of property for charitable purposes recognized by the Muslim Law. In the case of property donated as Waqf, the private ownership of the movable or immovable property is restricted and the ownership quite literally is given to God. The property no longer remains the private possession of any one individual but the entire community. The revenue and benefit derived revert to the community at large and its people most needy. The irreversible nature of such transfer conveys its underlying essence: continuous and unending support to the people. The Islamic institution of Waqf owes its existence to piety and the high esteem in which it is held in the faith.

On August 8, the Government introduced the Waqf (Amendment) Bill 2024 in the Parliament. It was then referred to a Joint Parliamentary Committee and public suggestions and views have been invited for the same. The introduction was applauded by its originators to be a general step towards efficient administration of Auqaf (singular Waqf) and a specific step towards helping the backward Muslims and women receive the benefit derived from them.^[3] However, it did not take long for the opposition and Muslim leaders to resist its passing, claiming the bill is an attempt more to ‘destroy than protect.’ Under the cloak of progressive legislation, the bill appears to make a target the Muslim community’s collective heritage.

The reasons for the worrying allegation are not discreet. The amendments proposed by the bill make structural changes that diminish the exclusive community value of Waqf under Muslim Law and increase the government’s discretion to take over the property. The overt dilution of Muslim identity in the administration is a regressive step away from affirmative action. The inclusion of non-Muslims in the State Waqf Boards and Central Waqf Council takes away from the Muslim community the exclusive control of their own affairs. The mandatory inclusion of two non-Muslim members^[4] in both the Central Waqf Council and the State Waqf Boards is unwarranted as the management of the Auqaf must remain with those to whom they belong for the proper dispensation of its objectives guided by Muslim Law. The intention of the bill makers is challenged on the ground that a similar provision may not be entertained when matters of Hindu religious endowments or temple trusts are concerned.

The Act provides that the decisions of the Waqf tribunal are final and binding without appeal.^[5] The role of the High Court is very limited in this regard. The authority of Waqf tribunals is compromised when appellate authority is given to the High Court in the hands of judges who may lack proficiency in matters of Waqf.^[6] Further, the presence of a member of tribunal ‘having knowledge of Muslim Law and Jurisprudence’ mandated by the Act^[7] has been eliminated in the Bill.^[8] The decision of matters would lie in the hands of adjudicators who may have no acquaintance with the intricacies of Muslim Law along the banks of which flows the principle of Waqf.

Wide power has been given to the Collector under the bill for declaration of a property claimed and identified with Waqf as Government property after an inquiry he deems fit.^[9] A provision as such makes it increasingly easy for appropriation of property of which the ownership is doubtful. The benefit of such doubt is as difficult to reach the Muslims as easy it is for the bulldozer to reach their homes. The powers of the Survey Commissioner have been proposed to be transferred to the overburdened Collector.^[10] The essence of Auqaf was never truly to belong to anyone to ensure its perpetuity and the principle of ‘once a Waqf, always a Waqf’ might stand diminished. Gregory Kozlowski in his book articulates this principle fittingly, “the theoretical implication of creating a Waqf suggests that the said property can never again change hands by inheritance, sale or seizure.”^[11]

The very creation of a new Waqf has also been put to test as if to ensure that fewer properties are dedicated to the cause. The definition of ‘Waqf’ in the Act under section 3(r) that reads ‘the permanent dedication by any person, of any movable or immovable property …’ is proposed to be replaced by ‘the permanent dedication by any person practicing Islam for at least five years of any movable of immovable property, having ownership of such property.’^[12] Imposition of a time period on the practice of the faith is offensive to its followers and would serve as a limiting factor on the creation of Waqf. Who decides whether a person has been a Muslim for five years? It is pertinent to mention that non Muslims have been completely barred from dedicating their property for the benevolent ends a Waqf entails. Such changes are bound to have detrimental effects on the spirit of common brotherhood and communal harmony.

Waqf properties in India predate independence and many have been recognized as such by virtue of their prolonged usage. The first known reference of Waqf in the country dates back to 1185 AD by a Ghorid Sultan who dedicated two villages in favour of Jama Masjid in Multan.^[13] No documentary record of property of such historic nature is available or required to prove the existence of Waqf. The new bill removes the provision for Waqf by user.^[14] A multitude of properties stand exposed to losing their status as Waqf and can be effortlessly targeted.

Another change introduced in the bill pertains to Waqf-alal-Aulad. A waqf of such kind is created by a person for the benefit of those in his family and is a private waqf based on the principle that ‘charity begins at home.’ It continues till the line of succession and once the line fails, the benefit of the Waqf reverts to the community outside the family for the people’s ‘education, development, welfare and such other purposes as recognised by Muslim law.’^[15] The Bill seeks to take away the basis of Muslim Law on the premise of which the use would be decided and seeks to replace it with ‘when the line of succession fails, the income of the waqf shall be spent for education, development, welfare, maintenance of widow, divorced woman and orphan in such manner, as may be prescribed by the Central Government.’^[16] The government is set to become the deciding authority which is against the essence of a Waqf which belongs to the Muslim community and the community must decide what becomes of its collective property.

Additionally, the State government has been given the discretion to create separate Waqf boards for the Bohra and Agakhani Muslims in the bill.^[17] If allowed to happen, it may create unnecessary lines of division in the Muslim community.

The very existence of Waqf properties in India has been claimed by some to be anti secular, unconstitutional and prejudicial to other religious communities. Actions premised by a promise of non preferential treatment to any one religion are more often than not driven by covert prejudice to the same. The Muslim community as a whole in India remains more downtrodden and backward than non Muslim OBCs and lag behind SCs and STs in higher education .^[18] The literacy rate is dismal and Muslims are afflicted with unemployment more severely in the present times with the rising communal bias.^[19] The Muslim community in need must not be deprived of the heritage that was dedicated to them by creating legislation disguised as a means of progress but containing terms that, if put in effect, would trigger the opposite.

Reference

1. Owaisi slams Waqf Amendment Bill, Accuses centre of seizing Muslim Charity properties, available at: https://www.youtube.com/watch?v=AIgbgvw4cjY ↑

2. Sachar Committee Report, Pg. 222, Box 11.2 ↑

3. MP Jagdambika Pal on Waqf bill, available at: https://www.newsonair.gov.in/first-meeting-of-joint-parliamentary-committee-on-waqf-amendment-bill-2024-begins-in-new-delhi/#:~:text=Mr.%20Pal%20said%20the%20Committee,management%20of%20the%20waqf%20properties. ↑

4. The Waqf (Amendment) Bill, 2024 (Bill 109 of 2024), clause 9 and clause 11 ↑

5. The Waqf Act 1995, s. 83(9) ↑

6. Supra note 4, clause 35 ↑

7. Supra note 5, s. 83(4) ↑

8. Supra note 6 ↑

9. Supra note 4, clause 4 ↑

10. Supra note 4, clause 5 ↑

11. Gregory Kozlowski, Muslim Endowments and Society in British India (Cambridge University Press, 1985) ↑

12. Supra note 4, clause 3 ↑

13. P.S. Munawar Hussain, Muslim Endowments, Waqf Law and Judicial Response in India xv (Routledge, 2021) ↑

14. Supra note 4, clause 3 ↑

15. Supra note 5, s. 3(r)(iv) ↑

16. Supra note 4, clause 3 ↑

17. Supra note 4, clause 10 ↑

18. Muslims lag behind SCs and STs in higher education, available at: https://www.thehindu.com/education/muslims-lag-behind-scheduled-castes-and-scheduled-tribes-in-higher-education/article66908403.ece ↑

19. Calls for Economic Boycott are crushing us, say Muslim Traders, available at: https://www.thehindu.com/news/cities/Delhi/calls-for-an-economic-boycott-are-crushing-us-say-muslim-traders/article67169716.ece ↑