This is the third article in the series ‘Law and Justice: A Journey through History’. Read the first and second articles.
Rule of law is the bedrock of any modern society. It ensures equality of all before the law. Through notions of justice, punitive mechanisms, and multiple avenues of enforcement, law shapes social relationships and also in turn gets reconstituted and challenged by actors and contexts. In these moments law takes on another attribute – that of virtue. As we explore the troubled relationship between law, justice and society in the following essays, we will note how law struggles to negotiate a delicate balance between its punitive trait and as a messiah for justice. The essays in this series will uncover some fascinating aspects of law by turning to the archives of law. This will help uncover the commonalities between history, legal history, and socio- legal studies and also foster greater dialogue between historians and lawyers in South Asia. The essays for this special series will be curated by Dr Nitin Sinha (Leibniz-Zentrum Moderner Orient, ZMO Berlin), Dr Sukhalata Sen (Former Assistant Professor, National Law School of India University, Bengaluru) and Vidhya Raveendranathan (Centre for Modern Indian Studies, University of Göttingen).
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In 2022, the controversy of BBMP(Bruhat Bengaluru Mahanagara Palike) encroaching upon an idghah in Bengaluru for Ganesh Utsav animated the Indian courts. The Karnataka State Board of Waqf and the Central Muslim Association of Karnataka appealed in the Supreme Court against the order of the high court of Karnataka allowing the puja on the premises. The Karnataka State Board of Waqf claimed that for the past 200 years, no religious event had been held on these grounds. The space was instead used as a playground for the local children. As both sides argued their cases, they revived precedents from the Supreme Court on decisions on waqf properties.
The prosecutors compellingly argued that a Supreme Court judgement from 1964 had confirmed the claims of the Waqf Board to the land from the 18th century. Further that in the Waqf Act of 2013, the state was denied any authority to stake claims on properties managed by the board. The defence contrarily pointed out another case in February of that same year in 2022 (State of Andhra Pradesh vs. AP State Waqf Board & Ors), wherein the Supreme Court had held that under Article 12 these lands were not ‘immune’ to being claimed by the state. It further contended that many parks in the country were often used for the celebrations of different festivities and that this space should not serve as an exception.
Even before this case, disputes around the use of and encroachment on properties of waqf boards had been brought to the courts. But this case was interesting on two counts: first that the positioning of apposite precedents on either side presented the Supreme Court as schizophrenic and its decisions untenable.
Second, the case earmarked a quick slide from the choice of precedents to the practical usage of the property for public activities. As the government claimed that the land had been registered as a playground, it was only wise to use it as such for other festivities. When the court confirmed that there were enough public spaces available to hold the festivities, it decided to preserve the practice of the past 200 years of not holding religious festivities on these grounds, as the property belonged to the waqf board.
Also read: Bill to Amend Waqf Act Proposes Stripping Power from Boards to Decide if Properties are Waqf
Jump cut to 2024 in the parliament, the government footed the bill for the amendment of the Waqf Board composition and its ‘unfettered’ claims on properties. As more than 8.7 lakhs of properties in the country, corresponding to a total of 9.4 lakhs acres of land are under waqf jurisdiction, the government alleged that the powers of the waqf board to stake claim to properties had also delayed surveys of such properties. It argued that even in the Islamic countries of Osman, and Saudi Arabia, such powers have not been accorded to the waqf board. It stated that the amendment was a response to the representations from Muslim intellectuals, women, Shia and Bohra community who sought to change the prevailing system of laws. Consequently, it proposed mandatory registration of such properties including disputed properties. It allowed a District Collector to supervise claim disputes on waqf properties and also insured by section 3, the government’s claims to waqf property which “before or after the commencement of this Act, [the property] shall not be deemed to be a waqf property.” The act further proposed the abolition of section 40 of the act which gave the right to the Waqf Board to decide whether a property was waqf property or not.
In the idgah case, the Supreme Court seemed to have been called upon not only to straighten out its legal memory, but also upon the historical claims of the waqf board. At first, these two seem contradictory. However, on a deeper examination, it appears that much of the historical memory of the waqf board was constituted by the law itself.
To explain this let us first consider how legal memory works. In a tumultuous modern society, precedents serve as the anchor to judicial memory. Past decisions tailor expectations of the case and allows the judges to search for legal rules and principles from precedents to apply to the new case under consideration.
But precedents are equally malleable as shown in the idgah case. Such malleability of precedents opens its route to becoming more than showcasing the technicalities of legal principles. This transcendent ability of precedents become most evident in the act of rendering justice. In the absence of clear legal rules in precedents, the courts pay close attention to the ‘facts’ of the case before it.
In such situations, the precedents become suggestive rather than a path for certainty. At this point, the judges may follow either of the two trajectories—originalism, where the original meaning of the doctrine, or text, or institution in the constitution is prioritised; or they can pursue the path of traditionalism, where the historical practices and social conventions are made more relevant in the decisions. If the judges opt for the second route, they will look for cultural rules and regulations which have sustained that institution.
Through the act of looking, the courts recognize and integrate certain historical practices of the institution at the cost of other practices. The legal memory so constructed is partial, purposeful, which reconfigures the historical and cultural practices of the institution within the normative order of the state.
In the idgah case, the decision of the Supreme Court to honour the long-standing precedents was also buttressed by the historical memory of the waqf board’s rights framed within the courts. However, if the constitutionality of the waqf board act is taken up before the Supreme Court, as many members of the opposition now threaten to do so, the court will be forced to take the second pathway. A new legal memory would invariably be constructed depending upon the path it chooses.
Representative image. Telangana Waqf Board headquarters. Photo: waqf.telangana.gov.in.
A new set of precedents would be marshalled to constitute this memory and at that very moment, the precedents would no longer be confined to revealing legal principles but become participants in the configuration of the historical memory of the waqf boards. Let us consider some instances from the past that reveal this process, when such historical memory of the waqf board was reconfigured through active engagement with law.
Legal memory and historical memory in the colonial era
Though the waqf board controversy is recent, it is also nothing new. Similar encroachments by the state on waqf properties had been made in the past which had roused similar passions on all sides. In the Supreme Court, the matter will always be seen as a matter of rights to property. The fact that the court recognizes the problem as a land dispute at all has a historical legacy to it. In 1772, Hastings had claimed that Muslims and Hindus would be judged according to their ‘personal laws’ or religious laws. Then in 1793, the Permanent Settlement made land an alienable property and converted the zamindars to landowners from mere collectors of revenue.
According to historian David Washbrook, it changed the way land was to be commodified for the future. The value of land was now drawn from its physical size rather than from its agricultural produce. In effect, such conversion of land to marketable assets undermined the status of elite zamindars, who were forced to sell their lands to meet the revenue demands of the new regime. This created a fundamental contradiction in the idea of property — on one hand, it was to be privately owned, and a marketable asset as indicated by the Permanent Settlement of 1793.
On the other hand, it could be governed by personal laws as a community holding that lay beyond the state’s jurisdiction and circulation in the free market. In 1863 the Religious Endowment Act gave the state limited power over such community/ religious properties particularly over the waqf properties. In 1864 the quazis and muftis who advised, adjudicated cases along Muslim laws in the district courts and in the waqf disputes were removed. Gregory Kozlowski claims, to block encroachment by the colonial state a new form of public holding appeared in the nineteenth century called the waqf of the family.
Earlier, waqfs were public holdings generally kept for maintaining Sufi shrines and Shia imambarahs. The family waqf holdings enabled Muslim landholders to keep their lands away from free market circulation and passing it on as an inheritance within the family. At the close of the century, the relations between the state and Muslims became strained over the encroachment of the colonial state on waqf properties. In 1894 the High Court of Calcutta dissolved family waqfs altogether. The Civil Procedure Code in 1903 allowed courts to mediate in waqf suits permitting such religious endowments to be used by private parties for claiming of unpaid debts.
At this juncture, many Muslim lawyers began to reframe the historical memory of waqf properties. According to Eric Beverly, Syed Ameer Ali Khan, on this occasion had claimed that the Indian Muslim’s moral universe was inseparable from waqf holdings. Khan insisted upon the centrality of the waqf board in South Asian Muslim laws which had prevented the pauperisation of Muslim landholders with the conversion of land into a saleable asset.
As charity to social kin and kith was kernel to the Muslim religion which could not be understood by a non-Muslim, since the abolishment of quazis, Khan effectively declared that the British and Hindu judges were not competent to adjudicate on waqf matters. He reminded the colonial state of the promise made by Hastings in 1772 to allow religious communities to manage their own landed estates as an essential legacy of colonial law.
A similar critique of encroachment by the colonial state was advanced by Badruddin Tyabji. Unlike Syed Ameer Ali, Tyabji who hailed from the commercially prosperous community of Bohras, asserted that family waqf existed since the Mughal period, claiming a longer precedence and legitimacy to the institution. He further used the waqf board as the central linchpin to the larger critique of colonial law’s encroachment on Muslim personal laws.
Like Syed Ameer Ali, he claimed the incapacity of the non-Muslim judges to decide upon waqf cases due to their fundamental ignorance of the Muslim laws. In the critique against the encroachment upon family waqf holdings, Beverly claims that both Tyabji and Syed Ameer Ali advanced a rhetoric of sacralisation of the law, where religion remained a private domain in the liberal discourse, a domain that was to be untouched by the secular law.
In 1913 the status of family waqfs was secured through the passage of the Mussalman Waqf Validating Act. The partial victory of the 1913 act confirmed the historical memory of the waqf boards drawn up by these Muslim lawyers which effectively declared that such precedents and historical memory were conjoined, often exerting pressure on each other, to rationalise and repel state encroachment.
Post-colonial memories of the Waqf board and the Indian state
In post-colonial India, the waqf board was recognised and in 1954 central and state level waqf boards were instituted. They were responsible for the administration of auwaqf, to protect lands from encroachment, develop them for welfare activities, maintaining mosques, graveyards, idgahs, ashore khanas (mourning spaces), maqbaras (tombs), and imambarahas. Yet encroachment to waqf lands still came in many forms, this time by government constituted bodies to protect such lands.
In fact, it is one of the ironies of partition, as Nayanjyot Lahiri professes, that ‘almost all Mohammadan monuments of the first importance remained in India’. The newly independent government’s strategy to cope with this situation was to ‘kill’ these monuments, archive them as ‘protected sites’ instead of living spaces for the community. Once these monuments were declared of national importance, they became flag bearers of the nation’s secularism. Anand Taneja claims the government probably took the decision to obstruct the mounting claims of the Rashtriya Swayamsevak Sangh (RSS) that temples were buried underneath mosques, emanating from the controversy of Bhojshala and Kamal Maula Mosques. Nevertheless, this strategy brought the waqf board in direct contradiction with Archaeological Survey of India (ASI), who laid claims to the monuments once they were declared protected sites.
Even if the ASI tried to acquire the rights to the lands on which these monuments were placed through law, they were bound to hit a roadblock as waqf lands could not be bought and sold, but only managed by the waqf board. It did not prevent the ASI from claiming equal rights to property under the guise of protection of these monuments. Many cases were registered on such infringement by the ASI onto properties of the waqf board.
Additionally, during the failed attempt by the waqf board to register for the Taj Mahal grounds in 2005, the courts had to contend with the memory of waqf which was incompatible with the secular ideology of the nation-state. Santhi Kavuri Bauer states that “to maintain the fantasy and wholeness of national unity, the monument must be rendered a space limited to representing Indian national heritage, and any act that alters this illusion is viewed as illegitimate and pernicious”.
The Waqf Board’s claims to the grounds as a site for offering prayers, veneration for the Muslims, contradicted the state’s intention for upholding it as a site of India’s glorious, secular past. To be fair such sanitisation of the premises of Taj Mahal had started under Lord Curzon, which disproved other activities on its premises such as British garden parties, plucking gems as souvenirs for their lady love or betting on oranges to fall from trees.
But as Sandra Freitag claims, the suppression of religion in the public sphere sliced open the problem of social justice and equity in the courts of law. In the face of communal riots ripping through Delhi, the Muslim monuments became a bone of contention and key sites for pushing the liberal, secular ideology. Unsurprisingly, the courts’ decisions on such disputes mostly aligned with the interest of the newly formed state to reformulate the historical memory of such sites.
Also read: Naidu and Nitish to Oppose Waqf Bill in Parliament, Says Muslim Personal Law Board
In 1986 the locks of Babri Masjid were opened for Hindu worshippers who claimed it was also a site of an old Hindu temple. In 1992 the Babri Masjid was demolished by a Hindu mob led by RSS. In 2010 the Allahabad high court struggling to reach a consensus advised the waqf board to share the site with the Hindu Niromahi Amhara sect and Ramlala Virajman.
In 2019, the Supreme Court failed in its mediation to settle the land dispute of Ayodhya. The Supreme Court then ordered that a trust be set up for the construction of Hindu temple and a separate piece of land to be awarded for the waqf board. As the court struggled with its own legal memory on the case, which was convoluted and contradictory, the powerful influences of the nation state decided the course of the case. Unlike the early post-colonial state which pushed for such sites as a representation of a reconfigured secular past of the country, the modern Indian state instead laid claims to a past that directly challenged the memories of both the waqf boards and early post-colonial state.
Today the controversy of the amendment of the waqf board structures has raised fears due to the public retreat of the nation-state from its position of secularism. The controversy over the amendments to the waqf board is that while it still integrates the waqf boards as a social plural order, it denies its status as a legal plural order. The act imagines this deviation through an overhaul in the composition and procedures of the waqf board.
Constitutionally, it now mandates representations from Bohras, Anghakhanis and two women on the board. Then it centralises all decisions regarding property, inheritance and surveying disputes in the District Collector from the Waqf Board Tribunal. The District Collector is now rendered as the mediator between disputes of the waqf board and the Centre. In the event of a property dispute between the Centre and the waqf board, the government’s claims now supersede that of the waqf board. In addition, the District Collector may also recommend properties to be claimed by the Centre provided he submits a report of proof and evidence for such claims to the state boards. The Centre can further change the composition of the Central Waqf Council at will. At present, much of the opposition against the bill focuses upon the changes in the constitution of the waqf board where the power is inflected heavily in favour of the nation state.
Yet, it is in the procedural legalities where most of the confusion may be anticipated. As the District Collector is mandated to recognize those properties with proper documentation or waqfnama, it is bound to raise problems of evidence in property disputes. Some Muslims claim that since many of the waqf properties were orally bestowed and continued under its management, such properties would no longer remain under its administration.
The digitization of the registration of waqf properties with waqfnamas by the District Collector indicates a future incompleteness in the data on the waqf properties. Further complications may be anticipated in the decisions of the waqf board which can now be appealed in the High Courts, where evidence is solidified upon documentation. In fact, one of the reasons for the introduction of the waqf amendment bill was to address the 40,951 cases piled up at present before the Waqf Board Tribunal. It is now hoped by the state and some sections of the Muslim communities that such trials pending before the Waqf Board Tribunal would be addressed faster.
The matter of registration would invariably throw spotlight to the conduct of the State Waqf Boards. The State Waqf Boards are already infamous for its corruption with a deep nexus between politicians, police, bureaucrats and land mafia for wheeling out properties. Now with the registration of waqf properties to be used exclusively for the welfare of the community, it will raise the tangled situation of the properties of the waqf board under the state board. At present, the corrupt practices have led to many acres already leased to some well-known real estate such as the Windsor Hotel in Bangalore or Mukesh Ambani’s residence in Bombay. As waqf properties are usually situated in the prime real estate spots of the city, it is understandable for the land mafia, brokers and buyers to now vie for such properties ceding to the government and later sold to individual buyers. However, if the High Courts are called upon to untangle the messy situation of the State Waqf board properties, it will invariably harness a new set of precedents which in turn would affect the historical memory and legal rights of the waqf board as an institution.
It remains to be seen how the act will affect the legalities of properties in the future. The fact that representations by the Muslim communities about the workings of the waqf board effectively eroded the legal authority and autonomy of the board is no surprise. History foretells similar instances where forum shopping by legal claimants in the plural arena of colonial and indigenous courts, effectively led to the streamlining of jurisdictional boundaries and created a hierarchy of the authority of colonial courts. However, what remains suppressed under the modern hierarchy are the memories of a longer historical past of the waqf board constituted and legitimised within courtrooms. Such memories are bound to interject and mediate the decisions of these cases. That the waqf board properties have always been framed at various moments in history like this suggests the active role of law in the constitution of historical memory, a thing which any new legal intervention chooses to forget.
