The liberal-secular Opposition has been up in arms against the Waqf (Amendment) Bill 2024, which it dubs as anti-Muslim. However, what is anti-Muslim in it has not been specified, for this is a generic rhetoric from the “secular” worldview in which everything concerning the Muslim is divine, unchangeable, and non-negotiable.
The secular parties have chosen not to go into the details of their objection, and have tried to keep their vote bank content with a perfunctory and frivolous criticism, for pointing out the anti-Muslimness of the proposed amendments in the law would open their own can of worms and expose the scam that is the “secular” discourse in India. They know that any serious discussion on Waqf has to begin with recognising what a den of corruption and mismanagement it has been.
How is it that an institution which, after the Army and the Railways, is the third largest landholder in India with a mind-boggling 9.4 lakh acres and 8.7 lakh properties, yet has so little to show for it? If Waqf is for charity, why does one never hear of a hospital, college, or orphanage run by it? Where does the money from such a big empire go? And if there isn’t enough money, what’s the explanation? Does it have something to do with how, during the high noon of secularism, the laws governing Waqf were framed and its management was constituted?
The inherent corruption in Waqf
The Bible of the Muslim victimhood, the Sachar Committee report of 2006, is an exposé of what happened to Muslims during the Secular Raj. It is one thing to announce that Muslims have the first claim on the national resources and quite another to treat them as equal citizens, ensuring that they didn’t lag behind in the country’s march forward. According to the Sachar Committee report, the income from the Waqf properties should have been about Rs 12,000 crore, whereas it was actually less than Rs 200 crore. The reason: corruption in the management. What could be more anti-Muslim than this astronomical corruption, and under whose nose it kept happening year after year?
One may ask, if this corruption is perennial, is the malaise inherent in the management of Waqf. As a poet has put it:
Yahan har tawalliyat apni hi miraas samjhi jaati hai; yahan jo Waqf hota hai, Ala-al-Aulad hota hai (loosely translated: such management is a personal affair, for every Waqf is a family settlement).
If Waqf is permanent, so is its corruption. As Hafiz (d. 1389), the greatest Persian poet and known as Lisan-ul Ghayb, the Voice of God, expressed the popular contempt for the institution:
One day a drunken mullah gave his verdict on the Holy Law. “Drinking wine is bad”, he said, “but having a waqf is worse.”
The wrangling of trustees, the use of endowments to evade taxes, the cover-up of dubious acquisitions of property, and the feeding of personal greed seemed to violate much of the spirit of Islam and gave rise to criticism. Perhaps complaints were rooted in the resentment that the underprivileged felt when they looked at an institution that preserved the property of the rich and perpetuated iniquitous patterns of social dominance.
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How Islamic is Waqf?
Imam Abu Hanifa (d. 767 AD), the eponym of the Hanafi Fiqh, the predominant school of Islamic jurisprudence in India, completely disapproved of Waqf. Why would he call it wrong if it was a mere charity, and didn’t infringe on a basic principle of Islam, in this case, the Quran’s law of inheritance?
The Quran makes no mention of Waqf. The scriptural validation for the institution is sought from Hadith — the purported record of Prophet Muhammad’s preaching and practice. It’s said that when Hazrat Umar asked him for guidance on how best to use his share of groves from the conquest of Khaybar for philanthropy, the Prophet advised him to “tie up” (one of the basic meanings of the verb Waqafa) the property, and devote any income to the welfare of the faithful.
The moot question is whether this donation became public property under the supervision of the emerging State, or if it remained under private management, which would jealously guard it against the State’s regulation. The question arises because, throughout Islamic history, Waqf has been an instrument of interdiction against the State’s intervention in private property. However, when the Islamic armies vanquished the Sassanid Empire, Caliph Umar, departing from the practice of parcelling out the territory among the conquering soldiers, declared the fertile region of Sawad (in present-day southern Iraq) as Waqf to keep it under the State’s control and protect it from private claims.
Involving Allah
We have seen that during the age of the Prophet and the Rashidun Caliphs, Waqf was created and maintained by the State. It was only after the Muslims became entrenched as an imperial power, that their powerful men, to create their own power bases, built the theory of separation between the two so that the property they declared as Waqf was fire-walled against the State’s jurisdiction.
The introduction of the military governorate, known as the Iqta, in the Islamic empire, led to the rise of strong commander-governors who tried to convert their assignments into permanent holdings to build hereditary and autonomous power on them. They hoped that the legal device of the permanent and irrevocable Waqf would guard their holding from confiscation by the suzerain and prevent them from being split into insignificant portions if the Quranic rule of inheritance, which mandates dividing property among all children and family members were to be applied. Care was taken to make a provision for religious ceremonies and the maintenance of mosques so that the Waqf could be shown as a service to Allah, making it sacrosanct and inviolable.
Is Waqf a charity?
The Islamic words for charity are Zakat, Sadaqat, and Khairat. Zakat and Khairat are often spoken in conjunction. Waqf is not a term for charity. It is derived from the Arabic root verb Waqafa, which means “to stop” or “to hold”. When the word is employed in a legal sense concerning a piece of land or a building, it signifies that the property is “stopped”, that is, it can never again change hands through inheritance, sale, or seizure.
This “locking” of property, which the other word Habs suggests, had been for protecting the property and the prestige it brings from disintegration if the Quranic rule of inheritance were to be applied. Waqf ensured that the estate remained intact; family members and dependents got their allowances; the mosque was maintained, and religious events like Milad and Muharram were financed. This way, the family retained its prestige and pre-eminence. A typical Waqf-Nama (or deed) says:
“Let it be known that this property, together with its income, has been assigned to my heir for maintenance and for protection and perpetuation of riasat and not for any sort of transfer . . . without division of any land, for by division power will be diminished and the riasat will be reduced to small parts. Then there will be neither the perpetuation of riasat nor the perpetuation of honour and then the distinction of the family will be lost.”
Most Waqf properties fall into this category, known as Waqf ala-al Aulad, which means Settlement for the Progeny. Even the other category, Waqf-e Aam (Public Endowment) is not much different, as the manager (Mutawalli) is generally from the donor’s family.
Although there is no data available, it can be safely said that the majority of Waqf properties are Waqf ala-al Aulad, making it wrong to call them charity.
Sir Syed’s embarrassed candour in admitting truth about Waqf
The British rulers, not aware of the jurisprudential skulduggery of an old power elite, took their loud profession of devotion to the Quran on the face value, and started applying the Quranic law of inheritance to their estates. This created chaos among the Muslim gentry. Sir Syed Ahmad Khan, the most preeminent Muslim intellectual of his times, who wanted the prominent families to remain the leaders of society, candidly admitted that since the days of the Prophet, Muslims had not ever observed the Quranic law of inheritance, which, if applied, would dismantle the Muslim aristocracy.
He further said that although Waqf was not a part of Islam, it was Mujaz, meaning permissible under Sharia, and adduced his point by citing rulings from Fatawa ‘Alamgiri. There is a world of difference between being a part of the religion and being just permissible under it. And so, the British courts took a principled stance. In 1894, the Privy Council issued a definitive ruling stating that Waqf ala-al Aulad was neither charitable nor religious and that a Waqf in the interest of the progeny could not be considered a charitable and religious endowment. The court told the Muslims to sincerely follow their religion. The directive to divide an estate according to the Quranic rules of inheritance among one’s children and relatives was a bolt from the blue that threatened the dissolution of the Muslim landed gentry, which would reduce them from the status of Nawabs and Ra’ees to that of petty farmers.
Waqf and the rise of Jinnah
Something needed to be done, and the context of the growing nationalist fervour and Swadeshi Movement, and their counter—formation of the Muslim League, Simla Deputation, Morley-Minto Reforms and the introduction of Separate Electorate—provided the right opportunity for the Muslim elite to overturn the Privy Council’s verdict on Waqf ala-al Aulad through the Legislative Council. It was similar to how the Supreme Court’s judgment in the Shah Bano Case was overturned by Parliament in 1986. Consequently, Muhammad Ali Jinnah piloted the passage of the Mussalman Wakf Validating Act of 1913. This was the first major victory of Jinnah’s political career. He had saved the large landholdings from fragmentation, by validating the anti-Quranic practices of the Muslim elite to build political power at the expense of social and economic justice.
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Template of Muslim politics
The 1913 political victory of the Muslim elite, led by Jinnah, set the template for Muslim politics for another 100 years till 2013 when an amendment in the Waqf Act of 1995 gave the Waqf boards unprecedented powers to claim property as theirs. Between 1913 and 2013, the Muslim elite had a series of victories, all at the cost of ordinary Muslims. In 1937, Jinnah won for them the Muslim Personal Law whose main purpose was to circumvent the Quran in property distribution. In 1947, they made Pakistan for themselves. In 1954, Jawaharlal Nehru’s government gave them another Waqf Act, which validated Waqf ala-al Aulad retrospectively. In 1986, they made Parliament overturn the Supreme Court’s judgment in the Shah Bano Case; and in 2013, the Waqf boards were invested with extraordinary powers to lay claim on a property they consider their own.
Power, not charity
The reason why we hardly ever see a charity run by the Waqf is that, in conception and practice, it has been less of a charity and more of a device of political economy to build and maintain the power of the Muslim elite. The recent bill for amendments to the existing law makes them apprehensive because politics shaped Islam quite as much as Islam shaped politics.
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 Ratan Priya)