A claim to the Taj

The Uttar Pradesh Sunni Central Wakf Board lays a claim to the Taj Mahal on the basis that the monument and affiliated structures within the complex are still used for religious purposes.

V. VENKATESAN in Lucknow and New Delhi

ON July 13, an order from a religious trust in Lucknow made a rather sensational claim - that the Taj Mahal, India's most prized monument, was not the property of the Government of India, but of the Uttar Pradesh Sunni Central Wakf Board, Lucknow. In other words, India's celebrated monument to love is religious (wakf) property. Quoting from historical and legal sources, the Wakf Board essentially based its claims on the rather narrow reasoning that the Taj Mahal and affiliated structures within the Taj complex are still used for religious purposes.

The claim would have been dismissed as outrageous and unworthy of notice had it not been for the fact that the Board appeared well within its legal rights to mandate on this issue. The Allahabad High Court itself, on November 8, 2004, while dismissing a writ petition filed by Mohd. Irfan Bedar, had directed the Wakf Board to take a decision within three months on this issue. Bedar, a resident of Firozabad, had put up an application before the Board in 1998, seeking the registration of the Taj Mahal as wakf property. Faced with an inordinate delay by the Board to hear his application, Bedar filed a writ petition before the High Court seeking its directions to the Board to expedite a decision. It was in response to this that the High Court referred the matter to the Board for a decision. The Board was also seized with another application filed by a Sunni Muslim, Nawab Shah Mohd. Shoib Khan, in May 2003, making an identical plea for registration of the Taj as wakf property.

The term "wakf", as defined by the Government of India's Wakf Act, 1995, means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious, or charitable. On receipt of an application for registration by anyone other than the person administering the so-called wakf property, the Board has to give notice of the application to the person administering the wakf property, and hear him, if he desires to be heard.

The Archaeological Survey of India (ASI), in response to the Board's notice, submitted its reply on May 9, 2005. In it, the ASI maintained that the Taj Mahal was not dedicated by Shahjahan for charitable purposes. In support of this stand, it submitted to the Board a copy of a notification issued by the British government on November 18, 1920, under Section 3 (1) of the Ancient Monument Preservation Act, 1904, which clearly established that the ownership of the Taj was vested in the government. The ASI argued that the right to manage centrally protected monuments and places of national importance vested in the Government of India and that the Wakf Board had no power to interfere in the matter. The ASI also held that the Taj Mahal could not be registered under the Government of India's Wakf Act, 1995, as there was no wakf deed to establish this claim.

From a historical perspective, the crucial question is whether official descriptions of the Taj during the Mughal period strengthen the Board's decision that it was wakf property. The Board refers to the Padshahnama by Abdul Hamid Lahori, published by the Asiatic Society of Bengal, and the Shahjahan Nama, Volume II (pages 290-294), published by Majlise-Taraqqi Adab, Lahore, as its sources for its claim that the Taj Mahal and its mosque that faces west, and a structure called the jama'at khana - a building used for religious teachings - facing east were established with prayers and charities in accordance with Muslim Sunni laws and traditions by the Mughal emperor Shahjahan. It is significant, however, that the Board does not directly quote from the text or from any translation of the original Persian text of Lahori's Padshahnama.

The Board's order said that Shahjahan dedicated the income of 30 villages of Pargana Haveli and Nagar Chand of Akbarabad [old name for Agra] "for the construction of Roza Taj Mahal and management of Mosque and annual urs [religious procession in honour of those buried] of Mumtaz Mahal, and nominated himself sole Mutawalli (custodian) of the said wakf." It added: "During his lifetime, Shahanshah Shahjahan continued as Mutawalli and carried annual fatiha (urs) of Mumtaz Mahal out of the income of the wakf property and made charities. Presently all the religious affairs are continuing at Rauza." This includes the urs ceremony on three days every year, and regular Friday prayers for two hours. Government orders, issued from time to time sanctioning these religious practices inside the Taj Mahal prove the religious use of the entire complex, the order has said.

Sources in the ASI, however, maintain that the government allowed the religious practices inside the Taj Mahal on a limited scale to demonstrate its concern for religious tolerance, as there has been a persistent demand from Muslims of the surrounding areas for such concession. But the sources admit that religious practices and conservation principles do not always go hand in hand. Interestingly, the decision to open the mosque inside the Taj complex for Friday prayers between noon and 2 p.m. was taken by the ASI during the tenure of the National Democratic Alliance (NDA) regime. During this time, tourists are not allowed inside the monument.

By another order on October 16, 2003, the Superintending Archaeologist, Agra, opened the gates of the Taj Mahal for the special namaz of Taraveeh in the month of Ramzan to be conducted in the mosque of Taj Mahal from 7-30 p.m. to 10 p.m. On September 9, 2004, under the United Progressive Alliance (UPA) government, the ASI gave permission for the three-day annual urs of Shahjahan to be held at the Taj Mahal, and exempted devotees from paying entry fee during those three days. Yet another order of January 23, 2004, by the Superintending Archaeologist, Agra, appointed Sadiq Ali the Imam of Taj Mahal masjid in place of his father, the late Sabik Ali, on a salary of Rs.15 per month. Considering the huge revenues from the Taj Mahal, this is a pittance of a salary for a functionary working in the complex and may well have strengthened the Board's case for the declaration of the Taj as wakf property.

Ironically, the constituents of the NDA and the UPA are now critical of the U.P. Sunni Central Wakf Board's decision. The Bharatiya Janata Party (BJP) asked the Centre to intervene in the controversy, warning that complacency would encourage others to stake claim to monuments such as the Qutub Minar and the Red Fort. While the Congress and the Communist Party of India(Marxist) have opposed the order, the Samajwadi Party has chosen to remain non-committal on the issue. The present Chairman of the Wakf Board, Hafiz Usman, is an MLA of the party and one of its secretaries. Party leader and Uttar Pradesh Chief Minister Mulayam Singh Yadav said that the State government would not interfere in the Board's decision and that the aggrieved could seek judicial remedy.

The arguments advanced by the Board to back its claim that the Taj is wakf property are largely based on current religious practice, such as Friday prayers and the conduct of urs (when the small rooms and verandahs on the side of the main gate are used by pilgrims). The board argues that the complex that includes the masjid, jama'at khana and other tombs were conceived of as a unified complex by Emperor Shahjahan in memory of his wife.

WHY is the Board keen on owning the Taj Mahal? One consequence of the Taj becoming wakf property would be that the Board would have a predominant say on how its revenues, totalling about Rs.15,000 crores a year (unofficial estimate), would be spent. However, apart from a probable and a substantial increase in the salary of the Imam of the Taj Masjid, the Board does not yet have any scheme for spending the huge revenue from the Taj Mahal on its upkeep. Hafiz Usman said the Board is not opposed to the ASI continuing the maintenance and conservation work of the Taj Mahal. "We will give the money, let the ASI spend whatever amount it requires for the Taj's upkeep," Usman said, and added that it was wrong to assume that the Board was interested only in the revenues of the Taj. "Only 7 per cent of the revenue would go to the Board; the rest has to be spent on the Taj's conservation and maintenance," he said.

The Board has defended its order under Sections 2 and 40 of the Government of India's Wakf Act, 1995. Section 2 of this Act says that the Act would apply to all wakfs whether created before or after the commencement of this Act. Section 40 empowers the Board to decide if a property is a wakf property. Section 40(2) says such a decision shall, unless revoked or modified by the Tribunal to be constituted by the State government, be final. Therefore, whatever be the grievance of the ASI, it has to approach the Tribunal first to challenge the Board's order. However, the Board has sought to pre-empt any move to bring the controversy before the Supreme Court in another pending case concerning the Taj Mahal, by filing a caveat in the Supreme Court on July 19, asking the court not to decide the matter without hearing it in view of reports that the ASI could seek judicial remedy from the apex court.

The Board has directed its Chief Executive Officer to call a meeting of the officers concerned of the Central government, the State government and the Board to frame a scheme of management of the monument in accordance with its order. If the response to the order even from within the Muslim community is any indication, the Board's credibility as a responsible trustee to whom the administration of the Taj Mahal could be entrusted, seems to be at its lowest ebb. The deterioration seen at some of the wakf-managed monuments - for example, the Jama Masjid in Delhi - is cited as proof of what would follow if the Board takes over the Taj Mahal. (The Delhi High Court has intervened to remove encroachments in the Jama Masjid complex on a petition seeking a declaration by the ASI that it is a protected monument.)

Muslim intellectuals such as Prof. Mushirul Hassan, and even hardliners on the Babri Masjid issue such as Syed Shahabuddin and Z. Jilani have either refrained from endorsing the Board's order or openly questioned its basis. Hafiz Usman alone has been defending his order, which smacks of his isolation on the issue, and to some extent, compromises the judicial character of the body that pronounced the order. In this context, therefore, it is not surprising if the Board's CEO takes a little longer to implement the order, as directed by its Chairman, even as it has led to a huge controversy about its merits.