Awqaf in India encompasses one of the largest corpuses of waqf properties in the world. However, with the fragmentation of Muslims’ power and the fall of their political dominance in the country, this socio-economic institution lost its potential for augmentation except in rare cases. Arguably, one of the major factors dampening the overall interest and confidence of Indian Muslims in this socio-religious philanthropic institution has been an unnecessary political intervention. Also, due to excessive bureaucracy in its management, uncertainty is looming large over the fate of the waqf. Mohammad Abdullah Nadwi discusses this further.
Introduction
Islam strongly endorses socio-economic and welfare-friendly practices, supporting and promoting philanthropic and charitable deeds. The concept of waqf in Shari’a is regarded as an empirical embodiment of this very proposition. Waqf derives its origin from approximately fourteen centuries back and is known to have been first practised by the Prophet himself for public utility or social causes. One of the first deeds of a waqf was drafted during the time of the second caliph, Omar bin Khattab in 6 Hijri. Historically, over the subsequent centuries, this prophetic model was enthusiastically imitated by Muslims all across the globe.
In this respect, the role of Indian Muslims should not be overlooked or underestimated, as they have endowed enormous portions of estates in the form of waqf. India, which is home to more than 150 million Muslims, accommodates thousands of waqf properties. Notably, up till the Mughal regime, Indian waqf was managed by the individually appointed mutawallis (trustees) and was supervised by qadis (Islamic judges) in accordance with Shari’a law. However, with the fall of the Mughal Empire, and the advent of British rule in the subcontinent, there were huge changes to the methods of overall governance. In the transition, the institution of waqf, inter alia, suffered critically and lost its special nature in terms of being supervised by judges.
Remarkably, in post-independent India, it was highly anticipated that the administrative responsibilities of waqf would be handed over to the community itself so that these properties would be managed according to the well-established Islamic law on waqf. This never happened. Under the provisions of the 1954 Waqf Act, the Government of India took a driver’s seat in managing and administrating the waqf in the country. The door for undue political intervention, manipulation and corruption in this religious institution was deliberately left wide open.
Although in 1995, in response to the ever-growing agitated voices of the Muslim community, the Government changed the existing Waqf Act, and ostensibly sought to democratize the process and mechanism of waqf administration, this in no way served the purpose. In fact, the waqf-related Shari’a guidelines were put to rest in the process.
“The Sachar Report further claims that the current market value of all the waqf properties in the country is estimated to be more than INR1.2 trillion. According to the Report “if these properties are put to efficient and marketable use they can generate at least a minimum return of ten per cent which “is about 120 billion Indian Rupees per annum.”
The evolution of waqf
The majority of awqaf (plural of waqf ) in India was created in the pre-colonised periods. Historically, successive Muslim sultans had been greatly generous towards funding awqaf since as early as thirteenth century. From the sixteenth century onwards, with the advent of the Mughal Empire in the sub-continent, the proportion and magnitude of awqaf expanded enormously. Interestingly, during the regime of the Sultans or Mughals there was no centralised waqf managing department, as most awqaf were managed by individually appointed trustees.
The onus of supervising awqaf during these periods, though, was subjected to a hierarchy. At the ground level, the imam of a village was entrusted with the supervision of the awqaf and was accountable to the regional qadi in disputed matters. The regional qadis, who were the ultimate resort in all Shari’a-related affairs of their respective regions, were required to report the functions and administration of regional awqaf to the provincial governor. These governors supervised and advised on the functionality of the provincial awqaf and were directed to report the Sudr as-Sudur, the highest religious authority of the state.
In this method of administration and supervision, waqf properties were in the hands of high-calibre trustees-cum-Islamic jurists, who, along with being pious and honest, were well-versed in the law of waqf. Through this mechanism, waqf witnessed efficient production and their corpuses were highly protected from decay, dilapidation, encroachments, misuse, disuse or abusive exploitations. As an effect, the confidence of the community was sustained through the provision of social benefits and the productivity of the institution.
In the aftermath of the Mughal Empire’s fragmentation in the early eighteenth century, the colonial ruler’s new administrative policy required an instant abolishment of the institution of the qadi. These qadis were replaced with newly appointed judges who were educated and trained in English law of administration and had little knowledge of Shari’a law.
It was initially believed that the religious nature of waqf, and its related underlying complexities, made it difficult for the British judges to interfere with this institution. Later, as the new rulers grew desperate to generate more revenues through taxation, they introduced for the first time in Indian history the policy of taxation on all private lands. Consequently, the Zamindari Act (conferring the ownership of land to its holder at the time) was implemented in 1793. According to this law, the legal title on land was to be transferred to the farmer working on the land at the time of decreeing this new law. This enactment adversely affected waqf properties as properties fell into the ownership of individuals responsible to protect and cultivate them.
Legal status of waqf
In post-independent India, despite the implementation of numerous measures by successive governments, nothing has succeeded in regaining the lost confidence of the Muslim community, particularly in protecting the security of their religious endowments. The waqf institution has been a tragic victim of political apathy in post-independence too. In fact, the absence of sincere and religiously-motivated high calibre individuals in the state and central waqf boards proved fatal.
Awqaf in India, at present, is regulated and governed by the Waqf Act, of 1995. The Act, consisting of 113 sections and divided into nine chapters, encapsulates the legal status of waqf, its pertinent technicalities, the power and activities of waqf boards and the rights and obligations of the related authorities as well. The Act requires each waqf to be registered with the office of the related waqf board, and the trustees are required to provide appropriate details of the waqfs under their management. The details required in the waqf deed include the category of the waqf, particulars of the waqf properties, specific stipulations of the beneficiaries, classes of the beneficiaries and the name of the trustee. The Waqf Act 1995 was passed in response to widespread criticism of the Waqf Amendment Act of 1984, which had attracted opposition from the Muslim community for providing excessive administrative and managerial powers to the central and state governments.
Under the Waqf Act of 1995, the waqf board of a specific state, including the Union Territory of Delhi, are required to have 7 to 13 members, of which the majority are elected from amongst the Muslim members of parliament, state legislatures, state bar councils and trustees of waqfs which have an annual income of INR100,000 or more. The nominated members of the board are supposed to be selected from eminent Muslim organisations of the state, recognised scholars of Muslim theology and law, and a representative of the state government not below the rank of deputy secretary (with reference to Section 14 of the 1995 Act).
Most importantly, the expenses incurred for the functioning of the state waqf boards are meted out through the obligatory contributions of the respective waqf. The rate of each waqf’s contribution for this purpose is fixed at six per cent of their total revenues.
Remarkably, the establishment of the Central Waqf Council, which was set up in 1965 under the now defunct Waqf Act of 1954, and was established for the sole purpose of advising the central government on waqf affairs of the country, has been constantly at the receiving end of controversy and criticism from the community. The major objections raised against its establishment include the need and purpose of its existence and the way its functioning and expenses are financed. As per official directives, the expenses of the Central Waqf Council are to be meted out through the collective contribution of each waqf in the country. Every waqf is required to contribute one per cent of its total annual income for this purpose.
The Waqf Act 1995 was passed in response to the recommendations of the Waqf Inquiry Committee appointed by the government of India in 1976. The Committee had strongly advised the government to minimize its excessive control over the affairs of the waqf administration and to democratise the selection procedures and the administrative system of waqfs. For more than ten years, it had been repeatedly claimed that the recommendations of the Committee had been implemented in letter and spirit. However, the Sachar Committee, which was constituted in March 2005 by the government to examine the socio-economic status of Muslims and their religious institutions in the country, revealed in its final report that a major part of the legal administrative policies related to waqf are still restricted and are far from being implemented in practice.
The worrying findings of the Sachar Committee
According to the Committee’s report, there are approximately 490,000 registered waqf properties in the country, and the majority of them are registered in West Bengal and Uttar Pradesh – 148,200 and 122,839 respectively. The total area that waqf properties encroach is more than six hundred thousand acres and their book value is estimated to be INR60 billion. However, it is vital to note here that this estimation of the book value of waqf properties represents the value of each property as estimated sixty years ago. As far as the current market value of these properties is concerned, there is no exact data available in this regard. The official income from all these waqf properties is INR1.63 billion per annum amounting to a meagre rate of return of 2.7 per cent. Interestingly, of this revenue, six per cent is allocated for the working expenses of the respective waqf boards, and one per cent of the total revenues are allocated towards the expenses of Central Waqf Council.
According to the Report “if these properties are put to efficient and marketable use they can generate at least a minimum return of ten per cent which is about 120 billion Indian Rupees per annum.”
The Committee observed there has been no sincere political will on the part of successive governments to enhance the waqf institution in the last sixty years. Instead, in various states a large number of waqf properties are encroached upon by embezzling politicians. What is worse is that state governments are found to be equally involved in this nefarious activity. In this respect, Delhi State Government leads the way as it has illegally occupied more than three hundred waqf properties. The Committee’s report reveals that the encroachments upon waqf properties by private persons and government bodies are generally in two forms:
“(1) an absolute usurpation of property with no rents or other payments of any sort;
(2) those where the occupying party pays a nominal rent which has not been revised for decades.”
The consistent indifference and irresponsible attitude of the state and central governments towards the development and protection of waqf has damaged the optimal potential of this socio-religious institution. The Sachar Committee even notes “it is quite paradoxical that in the present Indian State in which nearly six hundred thousand acres of Waqf lands have been existing since more than one century, there still reside almost 38% Muslims in absolute or relative poverty.”
“In fact, due to rampant cases of misuse, disuse, mismanagement, encroachments and ill-administration, this socio-economic and religious-cum-charitable institution is dying a slow but sure death in the country.”
The Committee strongly recommended numerous amendments to
the clauses of the existing Waqf Act of 1995. A Joint Parliamentary Committee (JPC) was constituted in December 2006 to conduct a thorough inquiry on the viability of these recommendations. The JPC submitted its final report on February 2008 approving some of the Sachar Committee’s recommendations and also providing suggestions. Consequently, the Waqf Amendment Bill 2010 was proposed by the then Minister of Awqaf, Mr Salman Khursheed, and was passed unanimously in the Lower House (Parliament) on May 7, 2010. The Bill is at present pending in the Upper House of the country and is almost one step away from becoming legislature. However, the proposed amendments of the Bill have utterly failed in winning the confidence of the Muslim community. Rather, the Bill has attracted severe criticisms from leading Muslim organisations for comprising unsolicited clauses and ignoring some key recommendations of the JPC. The major objection raised against the Amendment Bill 2010 is directed to Clause 87 which makes the registration of every waqf property mandatoryand provides that in case of a dispute unregistered lands have no legal standing. This clause has ignited much concern from the community as the Bill is totally silent on the status of thousands of acres of land that are definitively waqf property but are not registered with the related offices.
Another objection against the proposed Bill is directed to a clause that states if the succession of a given trustee fails, any revenue generated from the related waqf would be spent on the welfare of the community. Since the word “community” lacks any definition in the Bill, it is feared that funds arising out of the waqf may be diverted to other areas instead of being specifically allocated for Muslims in the country.
Though the proposed Bill provides that any encroachment on a waqf would be tantamount to a non-bailable offence, the definition of encroachment has not been amended as per the recommendation of the Sachar Committee. In addition to drafting problems, the resentment of Muslims is fuelled by the absence of any concrete strategy to vacate the already encroached upon waqf properties.
In view of the above, and contrary to the Government’s claims that the Amendment Bill is meant to prevent corruption in waqf boards and to protect waqf properties, most leading Muslim organizations such as the All India Muslim Personal Law Board regard the Bill as incomplete and fails to address current problems.
Conclusion
Currently, awqaf in India are faced with challenges on three major dimensions. These include (1) inefficient utilisation of properties by officials, (2) menace of gradual encroachments by individuals and state governments on abandoned properties, and (3) lengthy and expensive process of litigation on adversely occupied properties.
In fact, to combat all these fatal challenges posed to Indian awqaf, there is an urgent need for an overall shift in the management paradigm. There is a strong demand for much-needed changes in the methodology, strategies, planning, policies and formulae of the institution’s administration.
Unfortunately, going through the Sachar Committee report reveals that the majority of awqaf in India are lying in a state of complete disorder. In fact, due to rampant cases of misuse, disuse, mismanagement, encroachments and ill- administration, this socio-economic and religious-cum-charitable institution is dying a slow but sure death in the country.
