While the new Waqf Bill introduces several progressive reforms, it has disturbing elements also, preventing certain Muslims from participating in waqf creation and disrupting the historical rights of Waqf Boards
“Amidst the optimism surrounding the digitalisation of records, audits, and accountability reforms in the Waqf Amendment Bill 2024, deeper concerns have escaped the attention of community leaders, civil societies, and activist groups advocating change”
Latief U Zaman Deva
Defining Muslim Identity and Eligibility
The original Waqf Act of 1995 allowed any Muslim to create a waqf or endowment with their movable or immovable property. However, the proposed amendment stipulates that only those who have practiced Islam for at least five years and hold ownership rights can do so.
A Muslim, in broad terms, is someone who believes in Allah and Prophet Muhammad as His final messenger, whether they are fully, partially, or even non-practicing. The critical question then arises: Who decides, and why should it be necessary to determine if a prospective waqif has been practicing Islam for five years?
The ability for a Muslim to create a waqf from their personal property should be straightforward and free from the scrutiny or approval of unrelated third parties.
This principle is a matter between the individual and Allah alone. The insertion of such criteria appears to be specifically designed to exclude affluent, non-practicing Muslims from creating waqfs.
Historical Properties and Rights
The immovable properties managed by Waqf Boards often include assets used for centuries, predating the British era in India. Throughout medieval and Mughal periods, recognition of waqf by usage was common, regardless of whether rulers or the state were recorded as owners.
The new amendments fail to recognize the rights of Waqf Boards to these long-utilized properties, instead attempting to reassign rights to the state by ending retrospectively the kind of Waqf by user as a mode.
Such a drastic shift contradicts standard legal practices and precedents, which typically protect established legal matters from being reopened through saving clauses. This oversight in the law could lead to unnecessary litigation and potentially ignite serious societal unrest, reminiscent of past conflicts like the Babri Masjid dispute.
Questionable Authority and Legal Recourse
Under the proposed law, the local Collector (or Deputy Commissioner), known to align with government interests, particularly those under political influences akin to the RSS, is designated as the competent authority to adjudicate matters relating to waqf property titles.
Given this setup, the Collector’s decisions, based on assessments by subordinate staff, are likely to favour the government.
Entrusting such a critical role to non-judicial officers undermines the impartiality required for fair adjudication. Alternatives involving the judiciary also appear unfeasible, given the contentious and poorly conceived provisions of the proposed law.
These issues warrant a careful reevaluation to ensure that the law serves all sections of the Muslim community equitably and preserves the cultural heritage embedded in longstanding waqf properties.
Draconian Provisions or Persecution
Waqfs are prohibited from filing suits, appeals, or initiating legal proceedings to enforce any right unless registered under the provisions of the Amended Act of 2024.
An exception allows a six-month window from the commencement of the Act. Waqfs registered under the 1995 Act are legally required to upload specific details to the portal and database within six months from the commencement of the 2024 Act.
These details must include the name and address of the Waqf’s creator, the mode, and the date of its creation. This enormous task is not manageable for everyone.
Given the scant information available, one might agree that long-term usage alone is a sufficient basis for action, with other criteria being optional, depending on their availability.
For instance, in the case of Eid Gah Srinagar, this would mean that Mir Syed Ali Hamdani (1314-1384 CE), who is buried in Khatlan, Tajikistan, established a Waqf in the fourteenth century by deed. The absence of the original deed should not prevent recognition of its historical use.
Similarly, the main Eid Gah in Janglat Mandi in Anantnag, known as Reshmol Chakul – a cultivable plain surrounded by water or marshland – was owned by Hyder Reshi, locally known as Reshmol Sb (17th century), and has been used for religious purposes, now recognized as Eid Gah.
The hallmark of people-friendly legislation is its ability to facilitate service groups in achieving their objectives. In the case of Waqfs, a “Deemed registration” mechanism should have been implemented for all, except updating details as necessary for database preparation.
Bizarre Features
The Waqf-alal-aulad, an endowment for when the line of succession ends, should not be jeopardized by inheritance claims from distant relatives. Such an approach infringes on the exclusive rights of an owner without immediate successors to dispose off their property during their lifetime.
In this scenario, the owner has two options: either to gift the property or to establish a Waqf-alal-aulad. Enforcing unaccrued inheritance rights can obstruct the intended pious, social, religious, charitable, and educational uses of the property, preventing the owner from institutionalizing its sacred use through a Waqf during their lifetime.
The rights of these distant heirs depend on the death of the owner, hence, during his lifetime, he retains the sole discretion over his property.
A special tier in the administrative hierarchy suits the survey and preparation of Waqf records better than dispersal at the district level, which is currently prone to undue influences. This would represent a significant advancement in creating a fair and swift survey process, but it remains an elusive ideal for now.
Secularizing Waqf Boards: A Case for Diverse Representation
Not only should Waqf Boards and their counterparts from other religious denominations consider diversifying the composition of their Board of Directors. To start, the disciplines of Office Management, Financial Oversight, and Legal Support should be based on skill rather than belief systems.
The Shri Mata Vaishno Devi Shrine Act 1988 in Jammu & Kashmir disqualifies non-Hindus from the positions of Chairman and members of the Board of Directors. Similarly, the Shri Amarnath Ji Shrine Act 2000 mandates analogous requirements for the Chairman and six members of the board, excluding three roles covering Administration, Finance, and Law.
However, since 2000, no non-Hindu has ever secured a position on the Board of Directors within these three disciplines. These two statutory bodies act as autonomous entities within the state for seventy percent of the population.
The situation in the rest of the country is no different, with the majority community, accounting for eighty percent of the population, generally reluctant to include members from minority communities, particularly Muslims, on their respective Shrine Boards for religious or other reasons.
Why then should an exception be made for Muslim Waqf Boards? In underdeveloped and developing countries, minorities have always been suspicious of the majority. As a confidence-building measure, the latter could render great service to the country by removing restrictions on non-Hindus in general and Muslims in particular, facilitating their induction into various religious boards.
*The author is an IAS (Retired) and former Chairman of the J&K Public Service Commission.”
(Courtesy Kashmir Times)