The Waqf (Amendment) Bill, 2024, has stirred controversy and backlash in Bharat, and without any second thought, Muslims in India have become most disgruntled and anguished because of the proposed Act, which according to them would be culminating in robbing off the pious endowments in Islam at the hands of the government.
The principal contention is that the government is interfering in Waqf, which is being interpreted as a violation of Constitutional rights of the minority community of Muslims. However, this allegation does not hold water given the fact that minority rights under the Constitution are always subjected to public order, and if public order is likely to be disturbed, the legislature has the right to restrict the freedom of minorities, and Waqf is not an exception to it.
The analysis of the Waqf Act since its inception establishes that the Act itself is made as liberal as possible in order to cater to the interests of Muslims in Bharat to the widest possible extent. From granting a land of Muslims who went from India to Pakistan to the Waqf boards under the Waqf Board Act of 1954 to doling out compensation for the Babri Masjid demolition of 1991 by the then Prime Minister PV Narasimha Rao-led Congress government by dovetailing the Waqf Board Act 1995, thereby giving Waqf boards unlimited rights to acquire land, the governments in Bharat have gone the extra mile to appease Muslims.
The existing Act has given all-out powers to the Waqf Board, even to decide whether particular land is Waqf or not, which is unparalleled. A peculiar concession to Muslims is denied to majority Hindus who had to lock horns with minority communities ranging from the civil court to the Supreme Court of India in order to finally establish their rights over Ram Janmbhoomi, but Muslim interests are cocooned under the Waqf Act 1995 by the formation of a special tribunal, which denudes civil courts of power to interfere against the decision of the special tribunal.
Another fathomable factor is that in 2004, the Congress government in Andhra Pradesh under Y.S.R. Reddy sold 1,630 acres of prime land from Dargah Hussain Shah Wali’s endowment, valued at ₹32,000 crore, to corporations and multinational corporations at a nominal price. Emaar acquired 400 acres, Microsoft 54 acres, Infosys 50 acres, Wipro 30 acres, and Polaris 7 acres. Prior to this, the Chandrababu Naidu government had transferred 1,100 acres of land to the Airport Development Authority of India.
In Delhi, numerous significant Waqf properties have been leased out at negligible rates—86 properties have been leased for just₹1 each and 110 properties on rents ranging from₹11 to₹127. In Uttarakhand, approximately ₹800 billion worth of endowment properties are largely under mafia control. These are a few of the instances that indicate that a time needs radical changes in the management of Waqf properties, as malfeasance in its administration by Muslims themselves is laid bare, and if Muslims are failing to pass the muster in stewarding Waqf endowments, then that results in defiance against Allah’s will, thereby a deprivation of services to needy persons, including Muslims for whom it was created.
When Muslims themselves are enjoying the reigns of Waqf and they are in cahoots with state governments, corporate houses, and mafias, militating against the Islamic peremptory to use the land and property created for Waqf for the services of charitable nature, who else is the best authority other than the central government to intervene and set the house in order? The point here to be remembered is that as per the Waqf Act 1995, the acquisition of Waqf property by the government is not barred; similarly, secular activities including social, economic, educational, and other welfare activities can also be regulated by the government, that means even a land if mismanaged by the Waqf board, the government has a complete right to intervene; hence, foul cries by Muslims should not be entertained.
A subtle but significant change in the definition of Waqf occurred in the Act 2013 when the expression ‘permanent dedication by a person professing Islam’ was replaced by ‘permanent dedication by any person’. The ruse was to ensnare as much property as possible under the concept of Waqf, no matter whether Waqif follows Islam or not; however, the purpose should be religious or charitable according to Muslim law.
Take an example of a group of people who desire to protect boars from getting slaughtered, or for that matter, pig rearing is undertaken by the creation of Waqf; will that be considered anti-Islamic and out of Waqf? If the answer is yes, then waqf is a mechanism devised to grab a property not belonging to Muslims to further Islamic objectives only. Similarly, the religious or pious activities according to Islam are limited to those swearing allegiance to Islam, which means Hindu festivals on the Waqf land will not be considered Islamic.
The latest case of the 2022 Bengaluru Eidgah Maidan dispute, where the Waqf Board sought to prevent Hindu festivals like Ganesh Chaturthi from being celebrated in public spaces by claiming that the land in question was Waqf property, testifies the assertion.
The Quran makes no mention of Waqf. The scriptural validation for the institution is sought from Hadith—the purported record of Prophet Muhammad’s preaching and practice. It’s said that when Hazrat Umar asked him for guidance on how best to use his share of groves from the conquest of Khaybar for philanthropy, the Prophet advised him to “tie up” (one of the basic meanings of the verb Waqafa) the property and devote any income to the welfare of the faithful.
The moot question is how to interpret the incident in Hadith when it is merely an advice by the Prophet and not a precept as such; moreover, apparently there seems no clarity if the Prophet’s advice to tie property was intended to be perpetual, which straddles beyond the mortal life of the donor, or was it applicable to the lifetime of the donor only. A mere piece of advice has been conveniently interpreted as the law of Islam and systematically inserted as part of traditional Islamic law by successive Islamic rulers, aristocrats, and maulvis as a tool all over the world to propagate the Islamic agenda.
However, in the late 19th century, when a dispute over a Waqf property ended up in the Privy Council of London during the days of the British Raj, the four British judges who heard the case described the Waqf as “a perpetuity of the worst and the most pernicious kind” and declared Waqf to be invalid. It is a different story that political skulduggery thereafter turned Waqf into an ironclad institution in Bharat.
There is no more monstrous word in the history of Indian politics than the word “minority.” Even since India emerged out of its political infancy, the demon of the interests of minorities and their protection stood before us and appeared to bar the progress of the country. It is a matter of history that this was a creation of the British policy, but it succeeded so well that it is essentially the work of the Satan of minority that our beloved country, which united for over a century, has been divided into more parts than one.
Rather than tyrannize the minorities, the fact was that in most places the minorities tyrannized the majority. The Muslims have almost everywhere enjoyed privileges far in excess of what may be called just or fair. Pressed by political considerations, microscopic minority interests have been advocated by almost all the governments in the past. Muslims enjoyed posts and privileges that they had no right to enjoy.
It is self-evident that if anybody enjoys more than he deserves, he must, of necessity, deprive someone else of his legitimate share. It is therefore the judiciary and legislature are equally responsible for protecting the Constitution from nefarious forces acting under the vail of a minority.
Nothing is more supreme than the Bhartiya Constitution and the legislature in democracy, being a representative of the people’s will, is not expected to be a silent spectator with folded hands when democracy and the Constitution of Bharat are exploited by any specific community. This demands a complete overhaul in Waqf as a concept in judicial and legislative parlance by impassionate understanding and interpretation of Islamic law.
Shrijeet Phadke
