THE TROUBLED MONUMENT
Board and the Archaeological Survey of India are locked in a legal battle for rights over the Taj Mahal. But what is a waqf, and should the heritage mausoleum be one?
‘A WAQF IS LIKE A TRUST. IF SOMETHING IS MADE A WAQF, IT THEN BELONGS TO GOD. IN ISLAMIC HISTORY THE IDEA OF THE WAQF GOES BACK TO THE TIME OF THE PROPHET’
The office of the UP Sunni Central Waqf Board on Mall Avenue, Lucknow, was once the residence of a senior government officer in the city. The building, with its covered front porch, high ceilinged rooms and open terrace, has obviously seen better days. Now, red betelnut juice stains the walls along the stairs, as in so many public sector offices in the country, and the rooms have been turned into clearly demarcated departments and cabins – of the chairperson, the chief executive officer, the audit department, survey officers and the law department.
For a casual onlooker, the most interesting sight in the building today will probably be that of the records room on the first floor. Not that any casual visitor will be allowed in here – a notice near the entrance informs that entry into the records room is strictly prohibited. Zufar Ahmad Faruqi, the board’s chairperson, informs that more than 85% of all board documents have been digitised. But the room is still lined with floor-to-ceiling shelves crammed with files. An aged employee bends over the folders, sorting papers and putting them away. “These documents relate to surveys and legal proceedings of the board... Currently we have about 1,200-1,300 ongoing cases at the Waqf Tribunal, more than 200 cases at the high courts (Allahabad and Lucknow taken together) and around 25 at the Supreme Court (SC). These relate to encroachments, illegal sales of waqf properties and management disputes,” says Faruqi.
One of the cases is of ownership and management rights over the Taj Mahal.
THE BACK STORY
In 1998, Irfan Bedar, a businessman in UP’s Firozabad, approached the UP Sunni Central Waqf Board with the appeal to register Taj Mahal as a waqf and appoint him muttawali or custodian of the property. “Firozabad was at the time part of the Agra district. Locals felt that the Taj is by rights a waqf and appointed me as their representative,” claims Bedar, who remains a party in the ongoing case at the SC.
Since the monument is managed by ASI, the board, says Faruqi, sent a notice to the Archaeological Survey of India (ASI), but didn’t register it as a waqf. Bedar then moved the high court. “The high court directed the board to take a decision on the appeal and the board decided to register the Taj as a waqf property,” recalls Faruqi. He wasn’t the chairman at the time, though. “The ASI, instead of going to the waqf tribunal – the first appellate authority for all cases of dispute relating to wakf properties – directly moved the SC against the decision,” he claims. A stay was put on the waqf board’s order and since then, the case has been pending at the apex court. Last month, the Court asked for a waqfnama – or a deed – to prove that Shah Jahan had meant the property to be a waqf.
PUTTING IT IN TRUST
“A waqf is a trust. But whereas a trust is a concept in common law, waqf is a feature of Islamic law,” explains senior advocate, Salman Khurshid, who has appeared for the board in Supreme Court. “If something is a waqf, then that property belongs to God – not to the waqif - the person who creates the waqf, or the muttawali – the custodian or caretaker of the property,” he explains. A waqf is created for charity – for public good, or for a religious or pious cause, and are of two kinds – public waqfs and waqf al ul aulad, where the waqf is made in the name of one’s descendents, but the residue after the needs of the family are met or after the line of succession has failed, are used for charity, adds Khurshid. Literally, the word waqf means to retain something, says Faruqi. “In Islamic history the idea of the waqf goes back to the time of the Prophet,” he adds.
The concept of the waqf board, though, is more recent. In the beginning, the power to ensure that waqfs are being properly maintained, was entrusted in the Qazi, says Faruqi. Under the British, that responsibility shifted to the civil courts, he adds. A string of laws to administer waqfs followed, both before and after Independence, the most recent one being The Waqf Act, 1995. There’s a Central Waqf Council and waqf boards in each state. The composition of the board is detailed in the Act, as are its duties. “We don’t have any power to directly administer the properties. We ensure that the muttawalis are maintaining the properties properly and using them for the purposes that the waqfs were created. If there are complaints of misuse, or illegal sales, disappearance of properties or encroachments, the board looks into them. Often the creator of the waqf appoints a muttawali, or the local people choose one. Where there is no muttawali, the board finds one,” says Faruqi.
The board also audits the income from the waqf and takes 7% of it – 1% for the Central Waqf Council, and 6% for itself. “This is for our expenses,” says Faruqi. The rest of the earnings goes to the muttawali who is supposed to use it for the maintenance of the property and for charity.
Unlike in most states, where there is one wakf board with both Shia and Sunni representatives, in UP, where a sizeable number of waqfs is Shia, there are two separate waqf boards – a
Sunni board and a Shia board. In the capital, Lucknow, for example, once the seat of the Shia rulers of Awadh, there are more Shia waqfs. This includes the city’s iconic Bara Imambada and Chhota Imambada. “There are about 8,793 waqfs registered under the UP Shia Central Waqf Board. Of these over 600 are in Lucknow,” says Syed Waseem Rizvi, chairperson of the UP Shia Central Waqf Board. While the Shia Board has not staked claim to the Taj yet, if the heritage monument is recognised as a wakf, a further tug of war is not unlikely.
HERITAGE HIGH
But since, both Khurshid and the Sunni waqf board admit that there is no existing waqfnama or deed by Shah Jahan that declares the Taj to be a waqf, why the debate over it? “It is true that for a property to be a waqf, someone has to create one. But there is also a concept of waqf-byuser,” says lawyer Shakil Ahmad Syed, one of the lawyers for the UP Sunni Waqf Board. Mosques, dargahs and graveyards are waqf-by-user, he says, since these are used by the public for religious purposes. The fact that the Taj is a mausoleum – even if it has only two graves – and the existence of the mosque within the complex, makes Taj a waqf, for those pushing for its registration under the Board. “Namaz is offered at the Taj. The urs or death anniversary of Shah Jahan is observed. All this is done with the permission and support of the ASI. But religious activities at the Taj should be performed by right, not by concession of the ASI. The principle of law should be clear,” says Khurshid.
Faruqi blames the incomplete survey by the government when the waqf boards were constituted for not having registered the Taj as a waqf before. And insists that it is not the only property to have been left out. Khurshid gives an example in Delhi. “During Partition, while many people moved to Pakistan, properties were left here. It took some time to come to the conclusion that waqfs don’t disappear because muttawalis are gone. In Delhi, many of these properties were taken over by the government and even reallocated, till there were protests and a committee was formed which identified 123 waqf properties which could be returned,” he recalls.
As far as the Taj is concerned, the UP Sunni Central Waqf Board is clear that registering the property as waqf does not mean that the ASI loses control. “We don’t have the expertise to conserve heritage properties, nor is it part of our responsibility. The ASI has the mandate for that,” says Faruqi, adding that the board may appoint ASI muttawali of the Taj. “We can share management. The board will ensure that religious activities are properly carried out and all other rights and responsibilities will continue to rest with the ASI.”
If the Supreme Court and ASI does agree to the system of joint management, the Taj will not be the only monument to be so maintained. In Lucknow, there are many such examples of ASI protected sites that are also registered as waqfs, under either the Shia or Sunni Boards – the Bada
Imambada, the Dayanat-UdDaulah Karbala, the Jama Masjid
Nadan Mahal… In Agra, the other big heritage monument, Fatehpur Sikri, is also managed by both the ASI and the Sunni Waqf Board. There are also temples which are under a trust, but are also ASI protected.“At Fatehpur Sikri the dargah, and not the fort, is a waqf. The ASI has the responsibility of conserving both the fort and the dargah, but we only look after the religious aspects of the dargah,” says Arshad Faridi, whose family is the hereditary spiritual head and muttawali of the dargah. While the ASI has introduced an entry fee to the fort, entry to the dargah is free. “The ticket money goes to the ASI and the Agra Development Authority (ADA). But we get the offerings made at the shrine,” he says.
MONEY MATTERS
The earnings from the Taj will be more messy to divide. Unlike at Fatehpur Sikri, the mausoleum will be an integral part of the waqf. The ASI and ADA jointly levy an entrance fee to the monument. As one of the most-visited monuments in the country, both by domestic and international tourists, the earnings are significant. According to the Ministry of Tourism, ₹ 2388.83 lakh was the revenue from entry tickets and other paid services at the Taj in 2015-16. Khurshid insists that money was not a consideration in the waqf board’s staking claim to the property. Faruqi also clarifies that the board has the right to exempt any waqf from having to pay 6% of its income to the board, but is unwilling to confirm whether it will do so with the Taj.
The ASI was unavailable for comments, but its counsel, ADN Rao, had cautioned the Court from giving ownership to the board. Historians and conservationists are of the view that the Taj should not be made into a waqf. “I think this kind of thing is dangerous. It is communalising what is our common heritage,” says Saleem Kidwai, a Lucknow-based historian and scholar. Heritage management consultant Amita Baig agrees. “The government is the custodian of heritage.”
Allegations of corruption and foul play by waqf boards are not uncommon either. Khurshid, a former union cabinet minister of minority affairs, has experience of working with waqf boards and admits that they are not equally efficient in all states.
The next hearing in the Taj Mahal case is on July 27. If the Supreme Court does allow the monument to be registered as a waqf, it may just be the beginning of another legal battle. “The Mughals were Sunni, but Mumtaz was Shia and the Taj was built for her,” says Rizvi.
Then there is Yakub Habeebuddin Tucy. The Hyderabad-based ‘prince’, who claims to be a descendant of the last Mughal emperor Bahadur Shah Zafar. But he and what he wants, is another story.