Govt intent to ‘reform’ waqf is suspicious. Consult Muslims first

Waqf are Muslim properties, and just like the trusts of Hindu, Sikh, Christian, and Parsi communities, the members of Waqf Boards should be Muslims.

The All India Muslim Personal Law Board held its working committee meeting on 14 July | Photo: Facebook/@AIMPLB

The Union Government introduced the Waqf (Amendment) Bill, 2024 in the Lok Sabha and, after much drama, agreed to refer it to a Joint Parliamentary Committee that will comprise MPs from all parties.

As with most issues associated with minority communities, there have been questions about the “intentions” of this ruling dispensation. Almost all recognised Muslim organisations across India, including Jamaat-e-Islami Hind, Jamiat Ulama-i-Hind, the All India Muslim Personal Law Board, Firangi Mahal, and other prominent clerics, have protested against substantial components of this proposed Act.

It is being said that there was a lack of consultation with stakeholders and that the Bill is antagonistic to Muslim interests and contrary to the principles enunciated in Articles 24-28 of the Constitution of India. Nearly the entire Opposition in Parliament has labelled this an attempt to interfere in Muslim affairs. Some people argue that it’s an attempt by the government to finally take over and manage properties that have been “waqfed” by Muslims over centuries.

Waqfs have been in existence for over 1,400 years since the advent of Islam. A waqf is a type of private property owned by a Muslim that is given for a specific purpose—whether religious, charitable, or for the benefit of the owner’s family.

A woman can also establish a waqf if she is the owner. Waqf is perpetual in nature and cannot be taken back or de-waqfed, even if the original waqif desires it. A property can be declared as waqf either orally, in the presence of two witnesses, or through a deed known as the Waqfnama. Since 1913, various governments have overseen the governance of waqfs to ensure proper and fair management.

The last amendment to the Waqf Act, 1995, made in 2013, prescribed imprisonment up to two years in case of encroachments, sale, or transfer of waqf properties.

Waqf properties in each state are managed by their respective waqf boards, which are composed of a chairman and members nominated by the state government. These members are typically former MPs and MLAs, clerics, and mutawallis. Needless to say these boards are often an extension of the favours or largesse distributed by the government. Their merits, qualifications, and integrity are never central to their appointments. Unfortunately, this is our system. Disputes related to waqfs are heard by a tribunal established by the state government, which is headed by a judge from the state judiciary and includes two members who are usually from the state civil service.

Here lies the nub of the problem. This is why everyone, Muslims more so, complains about the rampant corruption, red tape, and inefficiency of these waqf boards. People report mismanagement, exploitation, and dispensation of favours.

Numerous properties are waqf-alal-aulad, where benefits are supposed to go to the beneficiaries named in the Waqfnama. In case of disputes among beneficiaries, matters often drag on for years, ruining poor families while they wait for resolution. Therefore, there is no doubt that the selection process for waqf boards, the qualifications of its members, and their working must be looked at. Since each board has its own procedures, a comprehensive examination and reform of these systems across all states are necessary.

Having said this, I believe this cannot happen because every government feeds on this milch cow to accommodate disgruntled but powerful supporters. The allure of the valuable assets—the cream—in possession of the waqf boards is appealing to everyone.

Offering a facade of reform

To hide behind the issue of mismanagement of waqf boards to suggest holistic amendments without extensive consultations has seeds of widespread disagreement. There is already great distrust among minorities regarding government actions over the past decade. Under the façade of ending “appeasement”, the current dispensation finds the term “affirmative action” abhorrent.

Minorities, particularly Muslims and Christians, have been under strain and considerable concern due to the Citizenship Amendment Act (CAA), the much dreaded National Register of Citizens (NRC), or repeated unlawful demolitions of minority-owned houses and properties sanctioned by the government. Rather than taking steps to ameliorate concerns, if the government endeavours to change Acts that have been systematised over centuries, suspicion regarding its intent is bound to arise.

Such proposed amendments must come after wider consultations with stakeholders. Vague statements from all sides are not just disingenuous but create confusion in minds when people do not know the law. However, by and large, Muslims should have no problems with many proposed amendments.

The inclusion of Shias, Bohras, and Aghakhanis should hold no problems for anyone. One wonders, however, whether the Shia community has been duly consulted about separate waqf boards, which already exist.

The Bohra community, a small, well-to-do, well-educated, and religious group that strictly follows the Sayedna, their spiritual leader, who holds a unique status. How amenable would they be to be lumped with Sunnis and Shias, who are large in number and also politically more active?

The Bill intends to replace government-appointed surveyors of land purportedly designated as waqf with district magistrates. This is a retrograde proposal. Collectors already carry an extremely heavy burden of work, including court work – both original cases and appeals – along with district administration responsibilities such as law and order, development work, public grievances, handling VIPs, elections, and census work. The current surveyors, appointed by the government, could well be experienced state government officers.

The Bill proposes including women in waqf boards and granting them rights to inheritance in waqf properties. The fact is that there is no bar on women’s participation in waqf matters. They inherit all benefits allowed under Islamic law and there are numerous examples of women serving as Mutawallis or heading waqfs as a ‘karta’, a term easily understood by non-Muslims.

This amendment stems from the widespread belief that Muslim women are often ill-treated and denied rights. I would advise readers of this article to google Prophet Muhammad’s last sermon, where he spells out men’s and societies’ duties toward women. Therefore, this amendment should be welcome because it will only solidify the existing rights and status of women.

The Bill also proposes creating a central database and making details of each waqf in India available on a portal within six months. While the idea of a database is most welcome, the task of cataloging the lakhs of registered waqfs across India’s villages, towns, and metros would likely take several years.

The role of government

It is also incorrect for the government to propose including non-Muslims as members of waqf boards. Waqfs are Muslim properties, and just as Hindu, Sikh, Christian, and Parsi trusts are managed by members of their respective communities, the membership of waqf boards should be composed of Muslims.

The government’s role should be to ensure proper functioning of these boards through improved administrative mechanisms and careful vetting of members.

In times of increased political polarisation around the world, as indeed in India, there are sensitivities of minority groups that the government must keep in mind. This must happen irrespective of the political ideology in power because we become vulnerable when institutions are used as an instrument to suit political ends.

Acts like proposing such a Bill reduce democracy to shades of majoritarianism and normalise a culture of revenge and retribution. It is incumbent on governments to reconcile socio political differences so that societies can grow on shared values and reduce areas of differences.

India must go back to Gandhian principles of peace, love, and reconciliation rather than enacting legislation that adversely impacts the morale of various groups. In this regard, it is very important to note that the media – both traditional and social – should serve as platforms for debate and ideas that promote harmony, rather than become vehicles of polarisation and an extension of echo chambers.

Najeeb Jung is a former civil servant and former Lieutenant Governor of Delhi. Amogh Dev Rai is Reasearch Director, Advance Studies Institute of Asia (ASIA). Views are personal.

(Edited by Aamaan Alam Khan)