Propriety, not just property: The Waqf debate

Since the impacts of the amendments will go far beyond legal changes, the government must balance reforms with the rights of the Muslim community.

Waiting to cast their vote in the State Waqf Board election, in Hyderabad on February 28, 2022. There are concerns in the Muslim community that the proposed changes in the Waqf law will erode their rights. | Photo Credit: G. RAMAKRISHNA

The Waqf (Amendment) Bill, 2024, alongside the proposed uniform civil code (UCC), underscores the Narendra Modi government’s broader plan to reshape the sociopolitical landscape, particularly that of the country’s Muslim community.

While the UCC has been a long-standing agenda of the Hindu Right, along with the Ram temple in Ayodhya and the abolition of Article 370, the Waqf (Amendment) Bill represents a more recent and potentially far-reaching intervention. Together, these legislative moves appear to be part of a concerted effort to realign the rights and identities of minority communities in accordance with a majoritarian vision.

History of waqf

The term waqf means “detention”, symbolising the inalienable nature of properties committed to charitable causes, a tradition that has endured for centuries and across continents. There was no concept of waqf before the advent of Islam in Arabia. Several companions of Prophet Muhammad dedicated lands and properties to charity, leading to the saying attributed to him: “Tie up the substance and give away the fruits” (habbis al-asl wa Sabbil al-tamarrat).

The earliest reference to waqf is linked to Umar, the second Caliph, at a place called Khaibar, with subsequent dedications of property ranging from palm gardens to fields and even camels. In India, a wide array of properties falls under waqf; they include mosques, idgahs, dargahs, khanqahs, imambaras, maqbaras, ashoorkhanas, qabristans (graveyards), and anjumans.

Following the First War of Independence in 1857, in which Muslims played a dominant role, the British colonial authorities sought to contain the community’s influence. Towards this end, they enacted the Land Resumption Act, which taxed waqf lands heavily, thus severely impacting Muslim welfare.

As Asaf A.A. Fyzee notes in his seminal work, Outlines of Muhammadan Law, there has been a consistent trend towards increased state control over waqf properties, both in Muslim-majority countries and in India. For instance, in 1924, the Turkish Republic dissolved the Ministry of Waqfs and placed its administration under general oversight. Similarly, Muhammad Ali in Egypt confiscated all agricultural waqfs and placed them under parliamentary control. In Russia’s Muslim districts, waqf properties endured for centuries until the October Revolution, after which the state seized them. In India, there have been various waqf-related pieces of legislation, beginning with the Waqf Act of 1913, where waqf was defined as a “permanent dedication by a person professing the Mussulman faith of any property for religious, pious, or charitable purposes recognised by Muslim law”.

Bill in contention

The Waqf (Amendment) Bill, 2024, aims to amend the Waqf Act of 1995, which was last revised in 2013. The amendment proposes to rename it the Unified Waqf Management Empowerment Efficiency and Development Act, 1995. One key aspect of the 2013 amendment was the prohibition of the sale, gift, exchange, mortgage, or transfer of waqf property under Section 104A, with violators facing rigorous imprisonment.

The Modi government’s tendency to revisit and rework past legislation is well established, and the Waqf Act is no exception. Historically, waqf properties were not a major concern for the Hindu Right. However, interest surged following the Sachar Committee Report of 2006, which highlighted the under-utilisation of waqf properties and recommended reforms to enhance the role of such properties in uplifting the Muslim community. Many leaders of the Hindu Right were vocally critical of the Sachar report and labelled it an act of appeasement politics.

One of the more controversial proposals of the Waqf (Amendment) Bill is the inclusion of non-Muslim members in the management of waqf properties. This has sparked widespread concerns. During a parliamentary debate, at least 44 amendments were suggested by various political parties, and leaders from the INDIA bloc unanimously recommended that the Bill be referred to a Joint Parliamentary Committee (JPC). The Modi government, now a coalition, had no option but to do so. The JPC has 31 members: 21 from the Lok Sabha and 10 from the Rajya Sabha. It is chaired by Jagdambika Pal, a BJP MP.

Farmers air Waqf-related grievances before Jagdambika Pal, Chairman of the JPC that is examining the Waqf (Amendment) Bill, 2024, in Hubballi on November 8. | Photo Credit: KIRAN BAKALE

The JPC reportedly received millions of emails from concerned Muslims opposing the Bill. The All India Muslim Personal Law Board has said that more than five crore emails were sent to the JPC by concerned citizens.

Some BJP members, such as Nishikant Dubey, even claimed that China and Pakistan were behind the mail campaign, while some Hindu Right politicians derogatorily referred to it as “email jehad”. Such accusations should be seen as part of the demonisation campaign against Muslims by the Hindu Right. (The present intervention is, in a broader sense, what this writer describes as the de-Islamisation of India in his 2024 book, Shikwa-e-Hind: The Political Future of Indian Muslims.)

Sachar committee report

According to the 2006 Sachar report, there are more than 4.9 lakh registered Waqfs in the country. There is a large concentration of Waqf properties in States such as West Bengal and Uttar Pradesh. Kerala, Andhra Pradesh, and Karnataka also have a significant number of Waqf properties (see the table above).

The total area under waqf properties across the country is estimated at 6 lakh acres, according to the report. A sizeable number of waqf properties in urban areas are located in city centres, and their market value is many times more than the book value. The urban locations are not surprising, given that the Muslim dynasties that governed the country largely operated from cities.

Highlights

• The Waqf (Amendment) Bill, 2024, underscores the Modi government’s broader plan to reshape the sociopolitical landscape.
• In India, issues such as mismanagement and under-utilisation of Waqf properties are genuine, and reforms are required.
• The issue is complicated by a long history of disputes and protracted legal battles with the government and several organisations.

For instance, the report said, in Delhi alone the value of the Waqf properties is more than Rs. 6,000 crore. However, although these properties are of considerable size and value, the income generated is rather meagre. The Sachar report found that the current income then was only about Rs.163 crore, signifying a meagre rate of return of 2.7 per cent. Of this amount, it said, the Waqf Boards are entitled to receive a 7 per cent share, which is to be used for their working expenses.

The remaining amount is expected to be spent on the stated objectives of the respective waqfs. Therefore, issues such as mismanagement and under-utilisation are genuine, and reforms are required. During its review, the Sachar Committee also found that records of waqf properties were mostly outdated or incomplete. This discovery led to consultations with Waqf Board members and other stakeholders, resulting in several recommendations, including the need to reform the Waqf Act and ensure women’s representation on the boards.

Ironically, the Sachar Committee itself had no women members, highlighting broader issues of inclusivity. The Waqf (Amendment) Bill also has a provision for women members, which is clearly taken from the Sachar Committee recommendations.

Waqf properties: Encroachment, misuse and revenue loss

Encroachment of waqf properties by various private and government organisations has been a matter of grave concern across the country. In an interview to this author on September 27, Syed Mehmood Akhtar, who served as Director of Waqf between 2007 and 2011 under the Ministry of Minority Affairs during the United Progressive Alliance (UPA) government, said that several prominent properties are built on encroached lands.

For instance, the ITC Windsor Manor in Bengaluru is built on leased waqf property. Likewise, other iconic properties on leased waqf land include the Tollygunge Club and the Royal Calcutta Golf Club in Kolkata, the latter being the oldest golf club in the country. None of these properties pay market rentals. Such lease arrangements across cities have been causing massive revenue losses for Waqf Boards in different States.

Following orders from the Madurai Bench of the Madras High Court, the authorities removed encroachments on land owned by the Waqf Board in Dindigul, Tamil Nadu, on September 4, 2021. | Photo Credit: G. KARTHIKEYAN

This is a key reason why amendments are necessary and why, without the active interventions of the state, well-entrenched violations cannot be addressed. The issue is further complicated by a long history of disputes and protracted legal battles with the government, private entities, and other organisations. For example, between 1911 and 1915, the colonial government acquired large tracts of land, including waqf properties, for the construction of the capital city of New Delhi.

Subsequent agreements with entities like the Sunni Majlis-e-Auqaf, which predated the Delhi Waqf Board, failed to resolve these disputes. In 1970, a significant number of these properties were officially recognised as waqf properties, yet over 300 legal suits were filed by various parties, including the Delhi Development Authority (DDA). Four high-powered committees were set up between 1974 and 1984 to examine the various disputes.

Waqf by use

The concept of “waqf by use”, which allows properties without formal records to be treated as waqf on the basis of their historical usage, is central to the administration of these properties. The current draft of the Waqf (Amendment) Bill, however, proposes to eliminate this concept, which could result in many such properties reverting to state control if no documentation exists to prove their waqf status. This issue led to a heated debate at a JPC meeting in August, reflecting the deep concerns within the Muslim community.

The draft Bill states: “Any government property identified or declared as Waqf property before or after the commencement of the Act shall not be recognised as Waqf property.”

The potential elimination of the “waqf by use” category could result in enormous losses for the Muslim community, particularly in major urban centres where such properties hold substantial economic and historical value, particularly dargahs, masjids, and qabristans.

As the Waqf (Amendment) Bill advances through the legislative channels, it is crucial to recognise that it represents more than just legal reform. It reflects the broader political dynamics at play in the country today—a manifestation of the ongoing struggle over the rights, identities, and future of the country’s many minority communities. The stakes are high, and the outcomes of this issue will resonate far beyond the confines of legal texts, potentially altering the fabric of our pluralistic society.

Speaking in Gurugram in September, Union Home Minister Amit Shah declared that the Waqf (Amendment) Bill, 2024, would be passed in the upcoming winter session. But the government must approach the Bill with caution, balancing reforms with respect for the nation’s diverse historical and cultural foundations.

In an increasingly polarised atmosphere, the way forward must be rooted in justice, inclusivity, and the preservation of the country’s democratic ethos. The challenge, now more than ever, is to ensure that in pursuing national unity, we do not undermine the very pluralism that makes India unique.

Dr Mujibur Rehman is the author of Shikwa-e- Hind: The Political Future of Indian Muslims and teaches at Jamia Millia Central University, New Delhi.