The United Waqf Management, Empowerment, Efficiency, and Development (UMEED) Bill 2024, introduced by the ruling BJP-led Union government, has now been referred to the Joint Committee of Parliament (JCP) for further examination. Upon reviewing the draft Bill and observing reactions from the Opposition, media, and academics, it becomes evident that a crucial aspect is missing from the discourse. The responses from Muslim organisations follow a familiar pattern: an outright rejection of reforms deemed as religious matters, coupled with a resistance to any state intervention aimed at reforming these areas. This has been the typical stance on issues like Muslim Personal Law, Muslim University governance, and Waqf administration.
This reaction necessitates an intervention to bring forth a broader perspective.
The scope of the flawed bill
The proposed Bill ostensibly addresses the management and mismanagement of Waqf properties, rather than delving into the theological or historical legitimacy of Waqf as an institution. It seeks to address concerns about the assets held under Waqf, the proceeds they generate, and the persistent corruption within the Waqf administration. However, some Opposition leaders seem to be treating the Waqf Bill in the same way as they have treated other religious matters, such as the Shariat Act of 1937 and the governance of Aligarh Muslim University (AMU).
It is important to clarify that, regardless of the Supreme Court’s upcoming verdict on AMU’s minority status, structural reforms in the governance of AMU will remain unresolved. For instance, the AMU will still have a preponderance (over 80%) of membership of the internal teachers in the Executive Council. In all these cases, there exists a widely held belief within all Muslim communities that the state should not interfere, that no reforms should emerge from within the community, and that these matters are divinely ordained and therefore immutable. This belief perpetuates a sense of Muslim exceptionalism, exclusivity, and isolation from the state.
Both the government and the Opposition appear to be engaging in the usual “vote-bank politics”, addressing their respective constituencies based on identity. This approach has already caused significant harm to India’s Muslim communities, due to the bizarre stance of their own self-serving elites as well as the ruling and intellectual elites of the country. It is crucial for ordinary Muslims to be informed by their theological and secular institutions (such as Deoband, Nadwah, Aligarh Muslim University, Jamia Millia Islamia, and MANU Hyderabad) that Waqf, arguably, does not have explicit Quranic or Shariah mandates. Imam Abu Hanifa (699-767) also didn’t approve of it as an institution indisputably and explicitly sanctioned by Sharia. Waqf-e-Aam and Waqf-e-Aulad (types of Waqf) are often more about circumventing Quranic inheritance rules and preventing division among heirs than about altruism and charity and public welfare. They are not divinely ordained.
The historical context of Waqf
In the latter half of the 19th century, Waqf in India became a means to fund identity politics and secure representation in colonial governance institutions. Gregory Kozlowski’s 1985 book, Muslim Endowments and Society in British India, highlights that most Waqfs in India emerged during this period when the colonial state turned land into a commodity. Sir Syed Ahmad Khan (1817-1898), a visionary pragmatist, was aware of both the British Indian judges’ concerns about Waqf-e-Aulad (Waqf for descendants) and the self-interests of the Muslim landed aristocracy. British judges rightly saw Waqf-e-Aulad as circumvention of Quranic inheritance laws and in their judgments invalidated many of these Waqfs, as they lacked charitable elements. This is why they kept invalidating such Awqaf, annoying the Muslim landed elites turning into Waqifs.
Sir Syed therefore, proposed a middle path. In 1879 –as member of the Viceroy’s Legislative council– he introduced a draft bill advocating that Waqf properties be used also for more meaningful and tangible charitable purposes such as education, healthcare, and social welfare, not just for mosques and madrasas. He argued that if managed properly, Waqf could be a powerful tool for social change and community development, brings out Prof. Shafey Kidwai’s column (India Today, August 13, 2024). Sir Syed’s proposal was also published in 1877 in his periodical Tehzibul Akhlaq, with the title, ‘A Proposal for Salvaging Muslim Families from Extinction and Destruction’. This was vehemently opposed by orthodox Muslims who saw the insistence on charity and public welfare as an innovation (bidat). As a result, Sir Syed succumbing to the conservatives and orthodoxy withdrew the bill.
In contrast, Muhammad Ali Jinnah, the cunning politician, by the second decade of the 19th century, jumped in to protect the interests of the Muslim landed elites who needed the Waqf Validation Act of 1913. This act, supported by the colonial state, aimed to safeguard the landed assets of these elites, who were seen as potential allies against the growing anti-colonial movement. The Swadeshi Movement, which opposed the religious-communal partition of Bengal, had forced the colonial state to annul the (Bengal) partition in 1911-192, necessitating a political arrangement to secure Muslim support.
Such a political arrangement to safeguard the monopoly on landed assets is equally true for the Mahanths and their Mutths .Unfortunately this institution of Mahanths and Maths remains under-explored by the historians of peasant and agrarian relations. Prakash Jha’s film Mrityudand (1997) attempts to depict some of the degenerative aspects of the institution of Mahanth, but it eventually turned more into a melodramatic movie.
The BJP has got no intent of introducing a similar Bill to reform this Hindu institution of Mahanths’ Muths? This is therefore an additional reason why Muslim communities look upon the proposed Bill with alarming concern, as it creates an impression of targeting only Muslims with discriminatory treatment. One more apprehension is, turning the Bill into a tool to harass Muslims by local majoritarian forces and outfits in those smaller villages and mohallas where written deeds of a Waqf and mosques aren’t available.
The nature of Waqf: Neither divine nor immutable
Waqf is not the exact equivalent of charitable endowments in the “Christian” West. In many cases, as said earlier, it is a means of circumventing Quranic inheritance regulations. Just as the community’s elites have misled others into believing that Shariat is divinely ordained, Waqf has also been portrayed as an immutable, divinely sanctioned institution. This deception needs to be exposed for the greater common good.
Moreover, the looting and encroachment of Waqf assets have been a recurring issue across the Islamic world since the 7th century AD. This mismanagement occurred with the earliest prominent Waqfs, such as Khyber and Sawad (Iraq) during Caliph Umar’s time, and the Rumlah (Palestine) Waqf established in 912 AD by a person named Faíq (which has earliest surviving written record-stone inscription). All three “earliest” Waqf estates have since become non-existent, as their assets were looted by military and other elites!
Waqf mismanagement and loot
The looting of Waqf assets is almost as old as the institution itself. In India, there is a consensus that Waqf properties suffer from gross mismanagement and looting. Despite numerous legislations, the loot continues unabated. The existing laws, therefore, require a thorough re-examination. Unfortunately, neither the ruling party nor the Opposition has highlighted this consensus in the Lok Sabha, in media, or in academic debates. The near silence of academics from institutions like AMU and JMI on this matter is particularly notable.
The “Muslim-friendly” “secular” Opposition refrains from addressing Waqf loot because doing so would justify the need for the Bill. This also explains why their interventions in the Lok Sabha are superficial and merely rhetorical. The Opposition cannot afford to state frankly that Waqf is not divine and requires human intervention for reform in order to prevent its loot and redirect it for the welfare and empowerment of the Muslim communities.
Academics, theologians and other knowledge elites have been shallow in their interventions. They have not voiced the concerns and apprehensions they discuss privately about the implications of the proposed Bill. The Muslim community needs to see through this politics, not only of the politicians but also of their own knowledge elites. Why aren’t these academics helping legislators and the community understand the issue in a holistic manner?
The real threat posed by the Bill is to the elites within the Muslim community. The proposed Bill challenges the exclusive Muslim representation in Waqf Boards as mandated by Section/clause 14 of the Waqf Act of 1995. This section, which deals with the social composition of Board Executives, is being questioned in the new Bill. The provision for Muslim-exclusive privileges in Waqf representation is being removed, which is a significant point of concern, alarm and contention. Another alarming concern is the proposal to do away with the enabling provisions enshrined in section 40 of the Waqf Act, 1995. It gives powers to the Board to acquire, issue notices or hold an enquiry into the ownership of the property that it has reasons to believe belongs to the Waqf.
Proposed reforms
While the proposed Bill has its deep flaws, the lack of detailed articulation by its opponents hinders constructive debate. Historically, state intervention has sometimes yielded positive results, as seen in the Mohsin Waqf of Hooghly, where the British colonial state established the Mohsin Hooghly College in 1836, going beyond the original terms of the original Waqf. The Waqf Bill of 2024 should explicitly incorporate such progressive steps. Parliament should legislate to ensure Waqf Boards take similar rewarding actions.
Muslim communities must abandon their collective hypocrisy. For instance, the practices, such as Instant Triple Talaq (ITT), are un-Quranic yet they stubbornly refuse to reform themselves as much as they resist the state intervention. Despite, Ali Miyan Nadvi’s assurance to the then Prime Minister Rajiv Gandhi, the AIMPLB refuses to provide for maintenance to divorced Muslim women. They keep opposing the Supreme Court verdicts in this regard. Likewise, adoption of a child is not prohibited by Quran (it only prohibits concealing the biological paternity of the child adopted) and custody is absolutely valid as was the case with Zayd the adopted son of the Prophet Muhammad, yet, the All India Muslim Personal Law Board (AIMPLB) refuses to reform it. Their stubbornness is immensely supported by most of the academics of the modern institutions such as the AMU and JMI. Political leaders like Akhilesh Yadav, Asaduddin Owaisi, and the All India Muslim Personal Law Board (AIMPLB) must take a clear stand on this issue.
Some Tentative Recommendations for the Waqf Bill 2024
- Creation of a Waqf Tribunal: Establish a tribunal consisting of judges of the rank of High Court judges as the exclusive body for resolving Waqf cases, with the Supreme Court as the appellate authority.
- Enhanced Land Survey: A Land Survey Commissioner should be comprised of at least three officers in each Board.
- Mandatory Gender and Caste Representation: The Waqf Board’s composition should be diversified and this should be made mandatory (with Muslims of all castes and women as members).
- Digital Transparency: Waqf assets, deeds, and real estate records should be digitized and made publicly accessible online for transparency and vigilance.
- Promotion of Charitable Activities: The Bill should mandate that Waqf properties be used aggressively for establishing modern educational and research institutions, especially quality residential schools under Article 30 of the Constitution.
- Strict Penalties for Mismanagement: Penalties for those who grab, usurp or mismanage Waqf properties should not be diluted. Rigorous imprisonment should be enforced.
- Memorialization of Waqf Creators: Waqf creators (Waqif) should be remembered in a befitting manner, be honored, and their deeds digitized and made publicly available.
- Defined Roles for Mutawallis: The roles of Mutawallis (Waqf administrators) should be clearly defined, with fixed tenures of 3-5 years. Eligibility criteria should be established for their appointment.
- Accountability Mechanisms: A robust check and balance mechanism should be implemented for both Mutawallis and Waqf Boards.
- Mandatory annual auditing, and the income of the Waqf Boards should be made available for public vigilance.
Hope, the stakeholders would listen to the above words!
(The author is a Professor of History, Aligarh Muslim University)