The Waqf is in dire need of reform. It needs both a conceptual update and a structural overhaul—a far more fundamental reform than what is proposed in the Waqf Amendment Bill 2024.
The Bill has been referred to the Joint Committee of Parliament, which invited and received a voluminous number of suggestions from interested citizens.
In this article, after an overview and necessary contextualisation, I am going to propose some reforms which may enable the Waqf to reinvent itself as a truly charitable institution. If it fails to do so, it will inevitably have to wind up.
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Misplaced objections, false parallels
The Muslim leadership—the traditional elite who make the narratives for ordinary Muslims—have a litany of objections to the proposed amendments. They don’t, however, have any substantive suggestions to improve the functioning of Waqf so that it might fulfil its declared objective of charity or public welfare. They would rather that the amendments of 2013 remain untouched. After all, the UPA government enacted this law to give them inordinate powers to run the Waqf as they wished, allowing them to act as judge, jury, and executioner in their own case.
What seems to have rattled them most is the proposed inclusion of two non-Muslim members in the reconstituted Central Waqf Council and state Waqf Boards. The stock language of their protest is as communal as clichéd. To question the inclusion of non-Muslims is graceless, to say the least. More so, because under Islamic law, non-Muslims can make a Waqf, and many Hindus have indeed done so. Moreover, to oppose this on the grounds that even Muslims are not included in temple bodies is to draw a misplaced parallel. A temple is a place of worship which may have some property attached to it, while a Waqf is a property endowment that may or may not include a mosque.
Furthermore, in most cases, Hindu religious and charitable endowments are under the strict control of state governments, and their money is spent on public welfare. Most importantly, the trusts belonging to temples and mutts run high-quality schools, colleges, universities, speciality hospitals, and other public charities. What does the Waqf run, and, so, where is the comparison?
Their more serious objection, however, lies in the proposal to entrust the Collector with the power to decide if a particular property is Waqf or not. At present, this power vests in the Waqf Board. Therefore, the Muslim elite sees the proposed amendment as an overweening interference in a domain they consider exclusively theirs, and therefore, beyond the jurisdiction of the Indian State.
Elite resistance
The Muslim elite’s objection to reforming Waqf law is the same as their stance on reform in Muslim personal law. Even as they admit to the need for reform, they don’t agree to it as they don’t regard the Indian State as their own. In their view, only an Islamic state is eligible to legislate on matters governed by the Sharia. Thus, the Indian State is barred from legislating for its Muslim citizens. And so, we are faced with a bizarre situation where most Muslim countries—formally orthodox and even theocratic—have been legislating progressive laws to address the gender injustice inherent in the Sharia, but Indian ulema and “modern” Muslim intellectuals continue to stall reforms on the plea that they would breach their Identity Fortress. Likewise for the Waqf.
Even though most Muslim countries keep their Waqf under strict governmental control, and many have altogether abolished it (so much for its ‘irrevocability’!), the Muslim elite of India won’t let the State have a say in the matter. That’s unless it is for making the Waqf a state within the State, and giving them untrammelled and virtually non-justiciable powers to lay claim to a property.
The Muslim narrative-makers belong to the same class that built the Waqf estates, and have kept them under their control. Being the descendants of Muslim rulers, they consider the Waqf a legacy of conquest. Surely, they didn’t bring these vast swathes of land from Arabia, Iran, or Central Asia. This elite, the Ashraaf, is instinctively hostile to any reform that could erode their power legacy—whether it’s the Juristic Enclave of Personal Law; the Estate of Waqf; their ‘Vatican’ at Aligarh, or the Vote Bank.
Shah Bano & the Waqf
The Waqf is a concern of the elite, not of the ordinary Muslim. Hardly any life has ever been touched by this much-vaunted Empire of Charity.
A case in point: in the Shah Bano case, the Supreme Court granted maintenance to a divorced Muslim woman. But the Muslim leadership saw this as an attack on Islam, since according to them, Sharia has no provision for alimony. Therefore, the Muslims couldn’t take the highest court’s judgement lying down. They bullied the government into submission. And such was the awe of their vote bank that the government readily capitulated, passing a law to subvert the said judgement. It had the most ironic title, the Muslim Women (Protection on Divorce) Act 1986. However, a valid question still needed to be answered — what about the divorced woman falling into destitution? Maulana Syed Abul Hasan Ali Nadvi, then president of the All India Muslim Personal Law Board, gave a solemn undertaking that maintenance for divorced destitute women would be paid by Waqf Board. So far, in nearly four decades, not a single woman has been paid the promised pittance. So much for charity!
The near total absence of any visible charity by Waqf should bring us to its real character and organisational structure.
Also Read: How Modi govt is proposing to amend Waqf Act & why critics call it harbinger of ‘Collector Raj’
A need for rational classification
In my previous article on the subject, it was irrefutably established that Waqf is neither religious nor charitable. It has no scriptural basis in the Quran or the Sunnat, and has actually been used as a juristic subterfuge to circumvent Islamic laws of inheritance and property distribution. It was also demonstrated that the legal fiction of vesting ownership in Allah and making Waqf irrevocable, inalienable, and unalterable were clever contrivances for the consolidation of property, formation of estates, and building of political power.
There are different types of Waqf, yet it’s strange that there is no systematic classification of them. As for the existing technical distinction between the Waqf-e Aulad (family Waqf) and Waqf-e Aam (public Waqf), there is hardly any awareness even among the highly educated Muslims, let alone ordinary Muslims and Hindus.
The reform of the Waqf has to begin with its rational classification. Since it’s about property and proceeds, it should first be classified into commercial and non-commercial types.
The non-commercial Waqfs are mainly standalone mosques with no shops and markets attached, as well as qabristan (graveyards). A large number of Waqfs, both registered and non-registered, belong to this category. The non-registered ones have been recognised as Waqf-by-user or Waqf-by-reputation. Their status should be maintained since they have been around for a long time and serve public purposes.
Commercial Waqfs should be classified into two types—Waqf-e Aulad (for the benefit of the donor’s family) and Waqf-e Aam (for public good).
By no stretch of the imagination can Waqf-e Aulad be called a charitable or religious endowment. In 1894, the Privy Council (the then Supreme Court) invalidated and effectively abolished Waqf-e Aulad, calling it “a perpetuity of the worst and the most pernicious kind”. This abolition had the seeds of dissolution of the Muslim landed gentry’s power.
But in 1913, in an uncanny parallel of the supersession of the Supreme Court’s judgement in the Shah Bano Case, the Privy Council’s judgement was set aside by the Mussalman Wakf Validating Act. Muhammad Ali Jinnah piloted its passage in the Central Legislative Council. We just have to look at the operative word, “Validating”, in the title of the Act to understand the law’s import.
Waqf-e-Aulad can remain unquestioned only till the time it is cleverly conflated with Waqf-e Aam. It serves no public purpose and was never meant to. It’s a legacy of conquest and ought to be abolished. During Muslim rule, under the law of escheat, property acquired through political power reverted to the state after the death of the office holder. However, if abolition seems too radical a step, family Waqfs can be converted into trusts and run as public charities or, better still, merged with Waqf-e-Aam.
As for Waqf-e-Aam, the public Waqf, every state government should create a Department of Waqf, with a hierarchy of civil servants to manage the properties for public welfare, without discrimination on grounds of religion. If a non-Muslim can make a Waqf, he should also be able to benefit from it.
The Waqf should be audited in the same manner as other government departments.
Reinvent or perish
Waqf Boards haven’t given a good account of themselves, and never can. As all-Muslim clubs, they have been constituted in such a manner as to preserve the remnants of Muslim rule. They have been condoning and facilitating the corruption that has become a byword for the Waqf. Even if they were upright, their organisational set-up is such that they won’t be able to oversee the management of such vast properties. There isn’t much rationale for their continued existence.
Along with the Waqf Boards, the office of the Mutawalli (manager) should also be abolished. He is the bane of the Waqf and personifies all that is wrong with its management. But for his complicity, there would neither be an encroachment on Waqf’s property nor embezzlement of its proceeds. After paying 7 per cent of the income to the Waqf Board, he is free to do whatever he wishes to with the accounted money. As for the unaccounted sum, which is manifold higher, the less said the better. No wonder, according to the Sachar Committee’s report of 2006, the annual income from all Waqf properties in India was only Rs 163 crore, whereas it should have been Rs 1,200 crore.
The institution of Waqf can no longer survive on the same model as evolved during the Abbasid empire. To remain relevant, it has to reinvent itself with a conceptual update and structural overhaul, as suggested above. If not, even the relic that it is will soon vanish.
Ibn Khaldun Bharati is a student of Islam, and looks at Islamic history from an Indian perspective. He tweets @IbnKhaldunIndic. Views are personal.
Editor’s note: We know the writer well and only allow pseudonyms when we do so.
(Edited by Asavari Singh)