The Waqf Debate and The Rule of Law

We introduced the subject in our previous Issue. In brief – Waqf, loosely defined, is a charitable endowment made in perpetuity in Allah’s name. According to figures provided by Home Minister Amit Shah on the floor of Parliament, Waqf Boards across the country manage properties amounting to 39 lakh (3.9 million) acres today, up from 18 lakh (1.8 million) acres in 2013. This rapid increase in the size of the endowments was ascribed to multiple factors dating to the 1954 Waqf Act.

The Waqf Board had essentially been empowered to act as its own parallel system of Government wherein its board, has its own legislature, its surveyor, its executive, and its tribunal, and its judiciary (as Prof. Anand Ranganathan notes).

Legal luminary Vishnu Shankar Jain, in a long thread on X featuring technical legal reasoning, has argued that the current changes are not sweeping enough.

Among the arguments made against the Bill : Violation of religious freedom (Art 25, 26), second-class citizenship for India’s second largest majority community, excessive Government control over religious charities, an inadequate consultation process, and ‘how can we trust a party whose State Government is not allowing Eid namaaz on the streets ?’

Among the arguments proffered for the Bill : Administrative efficiency, separation of the religious and secular (property management) function of the Waqf as upheld by the Calcutta High Court, representation for women and minority sects within Islam, removal of the arbitrary powers of the Waqf board superseding the writ of the State, and ‘97 lakh (9.7 million) letters and representations made to the Joint Parliamentary Committee over eight months is consultation enough’.

The one missing argument ? The Rule of Law.

A persistent feature of Indian law-making is the overcompensation for low state capacity using draconian provisions, which in turn become opportunities for rent-seeking. Lawlessness on the street is oft countered with the lawlessness in the law. The Waqf Act of 1995 is an example of this broader phenomenon.

Take the case of ‘Waqf by User’ (Sec. 40; for the uninitiated, verbal declarations that a property is Waqf), upheld by the Waqf Acts of 1954 and 1995. It is reasonable to suppose that in the newly independent India of 1954, the state lacked the capacity to register Waqf satisfactorily and hence passed this provision. After all, not even all births, deaths, and marriages were registered properly; who doesn’t have a relative whose ‘official’ birthday is different from their ‘real’ birthday ?

The trouble comes when the Indian State does not attempt to resolve these matters by building state capacity : Mandate proper registry and tracking of the properties, and grandfather in the poorly documented ones. The 2013 Amendment could have made a list of the ‘Waqf by User’ properties and declared them to be Waqf, and thereafter abolishing the relevant clause. The new law grandfathers existing ‘Waqf by User’ properties (with exceptions such as Government land) and prohibits new ‘Waqf by User’ declarations.

The (old) clause about the Waqf Tribunal’s decisions being challengeable only in State High Courts and the Supreme Court, and that too only by an expensive writ petition shows distrust of the lower judiciary. After all, India is the only major country where appellate jurisdiction in the upper judiciary admits fresh evidence ! Yet again, we don’t see any attempt at resolving this in 2013; the new law makes Waqf declarations challengeable by way of a civil suit.

There have been emotional appeals such as this one featuring the old ‘soak the rich’ – applying the statute of limitations would grant a hypothetical Waqf property to a rich squatter on said property.

What it fails to notice is that no statute of limitations could lead to entertaining revanchist notions. A standard of continuous use of (or worship at) the site, and/or a statute of limitations extended for a longer period would be the solution here, not docking the principles of the Rule of Law. There is also the matter of public trust in officialdom, as evinced in the opposition’s explanation for the 1500-year-old temple in Tiruchendurai.

They claim that the temple’s lands were declared Waqf due to a clerical error. In India, corruption and arbitrariness from officials are often passed off as incompetence (think about defense acquisitions for example) because Government officials cannot be easily fired for incompetence – yet again a state capacity issue.

As for tangential issues raised such as namaaz on the streets, this too is ultimately addressed by the Rule of Law. Anyone taking out a procession, be it for Eid, Muharram, Holi, Christmas, or Baisaki, needs to have official permission and pre-declared areas where the procession takes place. The Police must be properly trained to respond to any transgressions of the rules, with a well-defined use-of-force continuum. This would make for good initial training, continuous testing as well as a justiciable standard, and prevent the ugly scenes of Police kicking namaazis on the streets of Delhi. While that cop was suspended afterward, the systemic problem remains unaddressed.

The Bharatiya Janata Party (BJP) has made some of these points in the Parliament, but it has not presented them under the rubric of the Rule of Law. When challenged on India’s TV debate slugfests, at least one BJP spokesperson has resorted to talking about unke dil me Hindustan nahi hai (India is not in their hearts) and cheap shots about Pakistan/Partition. This accusation of thoughtcrime must stop. The BJP is India’s most modern political party in terms of using analytics to power its messaging; one can only conclude that the Rule of Law and high-end state narratives do not test well in their focus groups. This is a great disappointment.

Finally, it must be said that the old law seemed to eschew multiple principles in force across the democratic world, including property rights (long trampled over in India from the days of the First Amendment, which predated the First General Election), the statute of limitations, and equality under the Law, at the altar of a skewed notion of secularism.

As historian Sarvepalli Gopal concludes in his 3-volume biography of Jawaharlal Nehru : “In the Nehruvian worldview, the problem of minorities was basically one for the majority community to handle. The test of success was not what the Hindus thought, but how the Muslims and other communities felt”.

It is to this principle that everything else was subordinated, conveniently absolving the Indian State from building up actual capacity and treating all Indians as equal citizens but instead playing each community off against the others by granting special favors and dispensations.

Opponents of the Waqf Bill have noted that the officials of the Waqf board are appointed by the State and Central Governments (indeed, even the caretakers of Waqf property, mutawallis are deemed to be public servants and the protections accorded to public servants extend to them – Sec. 101 of the 1995 Act), and are hence under the authority of the BJP’s Government(s) when much of the expansion happened.

On the surface, this is countered by the fact that the Indian system gives significant discretionary powers to individual officials where there is the possibility of bad apples; State Waqf boards, whose officials were appointed by the States have done much of the expanding, etc.

But the heart of the matter is this : Both the old act and the new act are fundamentally distrustful of the citizen to the extent of giving overreaching powers to an organ of the State countervailing the rule of law and individual rights. Since the ‘Great Unwashed’ cannot be trusted with running their own affairs, we will empower an ostensibly neutral official of our Republic (who is axiomatically trustworthy. Yay Nehruvianism !) to enforce the sole directive of ‘secularism’ upon them, and in so doing, usher them into modernity, history be damned.

The new law replaces the Waqf Survey Commissioner with the District Collector – historically the callow colonial official tasked with keeping the venal natives in check using any means necessary – reinforcing the idea that the bureaucracy is a neutral blob with no gradations of individuality. Never mind the colonial legacy, lack of accountability or specialization, the permanence of tenure, and tempting proximity to political power innate to that system.

One of Vishnu Shankar Jain’s proposed amendments (which did not make the cut) also appears to be of the same vein : Replace one unaccountable and overpowered body (the Waqf Tribunal) with another (National Waqf Disputes Resolution Commission), eerily reminiscent of Anna’s Lokpal proposal.

One egregious law has been struck down for now, pending a judicial review, which is sure to come. But the larger principles of state capacity, individual rights including property rights, and the Rule of Law have to wait their turn.

(Courtesy : Excerpts from an Article on indiafacts.org.in; 9.4.2025)

Lawlessness on the street is oft countered with lawlessness in law. The Waqf Act of 1995 is an example of this phenomenon !