Waqf Act, 1995 (India)
The very latest legislation in India concerning the waqf system was passed in 1995. The Waqf Act of 1954 which was thought of at the time as an excellent piece of legislation, had brought, in reality, many difficulties and had to be amended in 1959, 1964 and in 1969. In 1984 another Amendment Act was passed which made comprehensive changes. But this Act also could not be enforced except for two of its provisions. The main criticism of this Act was related to the provisions concerning the power of the Waqf Commissioner. It was stated that the commissioner was given overriding powers and that the Waqf Board was made subordinate to him. Moreover, the 1984 Act was correctly considered a gross interference by the state and the central government in the day-to-day affairs of the waqfs and the mutawallis.
These views suggest that the 1984 Act probably represents the peak of the Indian waqf system’s centralization. The 1995 Act seems to embody a reaction to this centralization. Let us now observe to what extent this law can be considered as such.
The new Waqf Law has the following features: an interesting provision of the 1984 Act was the establishment of Waqf Tribunals ousting the jurisdiction of Civil Courts in matters of waqf disputes. This provision finds a place in the new 1995 Act (Rashid, 1997: 14). The Waqf Boards have been reorganised so as to have 13 members. The majority of these members will be elected from among the Muslim community. One particular criterion for selection pertains to the mutawallis: trustees of those waqfs with an annual income of greater than Rs. 1 lakh are eligible to be elected as Board members. Thus, individuals who are actually running the waqfs are allowed to have a say in their administration.
The Waqf Commissioner who under the 1984 Act chaired the Board is now to be called the Chief Executive Officer and will be subordinate to the Waqf Board. But when it comes to basics, however, his powers are hardly curbed. Thus, the 1995 Act has turned out to be as centralist as any other Act before it. Consequently, the arguments that a process of decentralization has already started in the Indian waqf system should be taken with a grain of salt.
The rate of contribution by the waqfs to the Board will be increased from six percent of the annual income to seven percent. Thus, the funds, which belong to charity, have been absorbed a little more into supporting the control mechanism.
Unlike the 1954 Act, which does not apply to various states, this new one will be applied in all except Jammu and Kashmir.
Endowment of movables is once again confirmed in chapter one. This issue is tackled further in chapter seven where it is promulgated that a mutawalli is permitted to lend money belonging to the waqf, providing that there is an express provision in the waqf deed.
In the same section the validity of family waqfs are also reconfirmed, providing that the ultimate purpose of the waqf is pious and charitable. This means of course, that once the lineage of the founder expires, the waqf reverts to a pious or charitable use, which conforms to the basic teachings of Islamic law.
In chapter two, state governments are granted authority to initiate and conduct waqf surveys. In order to standardise the information gained from such surveys, the questions to be asked are detailed. It is also specifically stated that the cost of the surveys will be met by the waqfs the net annual income of which exceeds 500 rupees. The exact amount to be contributed by each waqf, meeting this criterion, will be determined in proportion to the net annual income accruing to such waqfs. Thus, we have another erosion of waqf funds allocated to charity in the name of control. By way of comparison, it might be noted that since American non-profit organizations are not obliged to register, one can only guess their number, “in all likelyhood exceeding two million” (Salamon and Anheier, 1997: 302).
Further erosion occurs through support for another bureaucratic body, the so-called Central Waqf Council. The purpose of this Council has been described, in chapter three, as advising the government on matters concerning the working of the Waqf Boards and the due administration of waqfs. The Council shall be financed as follows: Every Board shall pay from its Waqf Fund annually to the Council 1% of the aggregate of the net annual income of the waqfs. All such moneys received by the Council shall form a fund to be called the Central Waqf Fund, which will be under the control of the Council.
Now that this new body has been established, there is a new need to audit its accounts! These auditing costs shall be covered by the Central Waqf Fund. The power to carry out the administration of waqfs is granted to the Central Government. It is interesting that such power is granted to the Central Government rather than the State Governments, indicating a continuation of centralization policy. It is stated furthermore that every such rule shall be laid before each house of parliament … and only if both houses agree, will it be applied.
The State Governments, on the other hand, shall establish the Board of Waqfs and appoint its members. A Chief Executive Officer (CEO) shall also be appointed who shall have controlling function over the Boards. Thus we have a hierarchy of control emerging:
Boards to be established by the State Governments
The decisions of these Boards shall be executed by the CEO
Both the CEO and the Boards shall be answerable to the State Government
Finally, we have the Central Waqf Council, which advises the Central Government.
Apparently, this hierarchy of control was deemed insufficient, for the Act also promulgates that the Board may appoint an Executive Officer with supporting staff for any waqf having a gross annual income of not less than 5 lakhs rupees. The function of the Executive Officer shall be to ensure that the budget of the waqf shall be submitted and the accounts maintained. Thus we are left to wonder, if the Board appoints these executive officers, what will be the status of the mutawalli himself, why will he be needed? Moreover, we are also concerned that with so much hierarchy, Indian waqfs will simply be suffocated. The 1995 law can, therefore, hardly be considered as an improvement.
The law has promulgated that the Boards shall also be responsible for sanctioning any transfer of the property of a waqf by way of sale. The law has made these property transfers quite difficult and subjected them to the condition that such istibdal transactions are approved by at least 2/3 of the members of the Board. While the law has made istibdal difficult, it has rendered the development of waqf property obligatory. It is promulgated that if the Board considers a waqf property as suitable for development, it shall first ask the mutawalli of the waqf to carry out this development and should he fail to do so in a given time, will then, with the prior approval of the State Government, take over the property and carry out the development itself. The Board shall use for such construction the funds of the waqf or borrow credit on the security of the properties of the waqf concerned. The 1995 Act also demands that all the waqfs shall be registered at the office of the Boards. Furthermore, it is stipulated that all the trustees shall provide standard information when they apply for registration.
Concerning the long-term lease of waqf properties, another controversial issue; a lease of any period exceeding three years, notwithstanding anything contained in the waqf deed, is void. Finally, we may add that the 1995 Act has not resolved the complicated tax problems mentioned above.
To conclude; India constitutes a most interesting case as it was the first country with a substantial Muslim population to have felt the massive impact of Western ideas and rule. Direct and continuous British rule since the late eighteenth century has led to the emergence of such idiosyncrasies as the Anglo-Muhammadan Law. Although we have been critical above of many of the actions of the British in India and their blatant disregard of the Islamic law, particularly concerning the “permanent settlement” and family waqfs, the final victory of the Muslims led by Jinnah stands tall as attribute to British tolerance and rule of law. It is therefore all the more telling that modernist Indian Muslims have been even more radical in applying Western values than the British themselves. This point will also be confirmed in the next section.
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.
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