Recently, the Supreme Court of India denied permission for the Ganesh Chaturthi celebrations at the Eidgah Maidaan in Bengaluru after the Karnataka Waqf Board raised objections against such celebrations at the said location claiming ownership of the land. This has again brought into focus the prevalent practice of Waqf in an allegedly secular country and the functioning of the boards maintaining them.
While Bruhat Bengaluru Mahanagara Palike (BBMP) claimed that the land of the Eidgah is government land and the title was not transferred to any Muslim organisation, the Waqf Board claimed that it is Waqf property since the 1850s and once a Waqf property, it continues to remain a Waqf property till eternity. Waqf Board’s lawyer Dushyant Dave also argued that Waqf Act is an overriding law and there are no legislative powers over it, hence the Court can not pass an order on a Waqf property.
The Supreme Court then denied permission for Ganesh Chaturthi celebrations and asked to maintain the status quo on the site.
What is Waqf
The very literal meaning of Waqf is detention or confinement and prohibition. As per Islam, it is the property that is now available only for religious or charitable purposes, and any other use or sale of the property is prohibited. As per Sharia law, once Waqf is established, and the property is dedicated to Waqf, it remains as Waqf property forever.
Waqf means that the ownership of the property is now taken away from the person making Waqf and transferred and detained by Allah. As per Sharia, this property is now permanently dedicated to Allah, making Waqf irrevocable in nature.
‘Waqif’ is a person who creates a waqf for the beneficiary. As Waqf properties are bestowed upon Allah, in the absence of a physically tangible entity, a ‘mutawalli’ is appointed by the waqif, or by a competent authority, to manage or administer a Waqf.
The history of Waqf and Waqf Boards in India
In India, the history of Waqf can be traced back to the early days of the Delhi Sultanate when Sultan Muizuddin Sam Ghaor dedicated two villages in favour of the Jama Masjid of Multan and handed its administration to Shaikhul Islam. As the Delhi Sultanate and later Islamic dynasties flourished in India, the number of Waqf properties kept increasing in India.
There was a case made for the abolition of Waqfs in India 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.
However, the decision by the four judges was not accepted in India and the Mussalman Waqf Validating Act of 1913 saved the institution of Waqf in India. Since then, no attempt has been made to curb Waqfs, and Waqf Board is now the 3rd largest land owner in India after the Armed Forces and Indian Railways.
In fact, political vote banks have dictated that the institution of Waqf has only been strengthened post-independence. The Waqf Act of 1954 passed by the Nehru government provided a pathway toward the centralisation of Waqfs. Central Waqf Council of India, a statutory body was established in 1964 by the Government of India under this Waqf Act of 1954. This central body oversees the work under various state Waqf boards which were established under provisions of Section 9(1) of the Waqf Act, 1954. The Waqf Act was made even more favourable to Muslims in 1995 which as Advocate Dave pointed out, is an overriding law and there are no legislative powers over it.
The Waqf Act 1995
The Waqf Act, 1995 was enacted and implemented on November 22, 1995. This act provides for the power and functions of the Waqf Council, the State Waqf Boards, and the Chief Executive Officer, and also the duties of mutawalli.
This Act also describes the power and restrictions of a Waqf Tribunal that acts in lieu of a civil court under its jurisdiction. The Waqf Tribunals are deemed to be a civil court and required to exercise all the powers and functions exercised by a civil court under the Code of Civil Procedure, 1908. The decision of a Tribunal shall be final and binding on the parties. No suit or legal proceedings shall lie under any civil court which this act requires to be determined by a Tribunal. Thus, making the Waqf Tribunal decisions above any civil court.
Once a Waqf property, always a Waqf property
Since the ownership of the property is transferred to Allah from the waqif in the case of Waqf, and property can not be taken back from Allah, once a property becomes Waqf, it will always stay Waqf.
As seen in the case of Bengaluru Eidgah ground, even though there was no title transfer to any Muslim organisation as per the government, Waqf’s claims that it was a Waqf property from the 1850s means that it is now forever a Waqf property.
Recently, the Gujarat Waqf Board had staked claim to the Surat Municipal Corporation building which is now the property of the Waqf because the documents were not updated. As per Waqf, back during the Mughal era, the Surat Municipal Corporation building was a sarai and used during the Hajj travels. The property then belonged to British Empire during British rule. However, when India got independence in 1947, the properties were then shifted to the government of India. However, since the documents were not updated, the SMC building then became Waqf property, and as Waqf Board says, once a Waqf, always a Waqf.
In another bizarre case of staking a claim, Divya Bhaskar had reported that the Waqf Board had written an application to Gujarat High Court staking claim on the ownership of two islands in Bet Dwarka in Devbhoomi Dwarka. A perplexed High Court Judge refused to hear the application and asked the Board to revise its petition wondering how can Waqf stake a claim on land in Krishnanagri.
Another interesting aspect of Waqf is that an apartment in your housing society can any day turn into a mosque without any input from the other members of the society if the owner of that apartment decides to endow it as Waqf. Something similar happened in Shiv Shakti society in Surat where one of the plot owners registered his plot with the Gujarat Waqf Board, making it a holy place for Muslims, and people started offering Namaz there.
The relevance of Waqf in a secular country
A special Act for religious properties of only one religion when no such law exists for any other religion smacks of clear discrimination. As a proudly secular country, how do we reconcile with this? In fact, a PIL has been currently filed in the Delhi High Court asking this very question by Advocate Ashwini Kumar Upadhyay. Delhi HC has issued notice to the central government on this plea regarding the constitutional validity of Waqf.
Waqf is not even present in all the Islamic countries with places such as Turkey, Libya, Egypt, Sudan, Lebanon, Syria, Jordan, Tunisia, and Iraq having no Waqfs. However, in India, in a country mired with vote-bank politics, not only are Waqf Boards the largest urban landowners, but they also have an Act protecting them legally.
