What I aim to explore is the legislation’s envisioning of women’s representation through mandatory inclusion as members on both the Central Waqf Council and each State Waqf Board, as well as through the provision related to Muslim women’s inheritance before Waqf can be made. But the most important question that emerges is whether these provisions and new conditions have the practicability to genuinely translate into empowerment.

Historically, the politics revolving around Muslim women in India has been marked by complicated dynamics, and deep contestations have ensured that it is a conversation with many fissures. Be it marriage, divorce (triple talaq), maintenance, or how Muslim women dress, we have routinely witnessed a systematic politicisation of their issues even as Muslim women have been peripheralised. The women are put upfront as part of legal reform discourse, but not as active stakeholders. They are always framed as subjects of state-led empowerment, yet their religious identity has often been instrumentalised to infringe their right to autonomy while simultaneously contributing to a broader dispossession of the Muslim community. Much of this dispossession is exhibited in the language of inclusiveness and empowerment.

Let us begin by examining the argument that the Waqf (Amendment) Act promotes a progressive vision of inclusion and empowerment. In the Central Waqf Council, out of an estimated twenty two members, only eight must be Muslims, and of those, at least two are required to be Muslim women.

Section 10 of the Waqf (Amendment) Act incorporates a new proviso which states that “Provided that two members appointed under clause (c) (which discusses Muslim appointees of the Central government) shall be women.”Similarly, the Waqf (Amendment) Act also notes in reference to the State Waqf Boards that “Provided that two members of the Board appointed under clause (c) shall be women.”

While there is ambiguity regarding whether the provisos mandate a minimum representation of two women or a fixed one, in practice we may expect that the representation would not exceed the minimum mandate of two.

The amendment does not even mandate representation through a percentage figure. The mandated representation is also not proportional to the demographic population that these Muslim women members would represent. The Act essentially only guarantees to Muslim women a representation which is less than ten percent of the total strength of the members in the bodies.

It is rather clear that these two Muslim women members would be handpicked in the absence of any organised criteria, and the apprehension is that their appointment will be a tokenistic one to showcase diversity commitments. The Act fails to specify a set procedure with regards to the qualifications desired of these women members. Further, it does not address the serious implications of ensuring that their voices are heard.

Will the women members have a say in the decision-making process? It seems unlikely with the representation being merely a formality (although presented as a progressive move) without actually having any overall impact. The only progress it appears to make is in effectuating a shift from complete invisibility to tokenised invisibility.

The ironic aspect of this amendment is the lack of awareness among Muslim women regarding the new inclusion. There is no comprehensive data available indicating how many Muslim women were consulted before this framework of mandating a minimal representation of only two Muslim women was arrived at. No data has been presented on how the stakeholders were consulted or how their opinions were incorporated.

The intersectional marginalisation of Muslim women also exacerbates the issue, as Muslim women have been confronted with oppressive structures of gender, caste, class and their minority identity, resulting in poor access to literacy. This educational disenfranchisement has been caused in part by family and social structures as well as State actions (consider for instance how the Karnataka Hijab ban in 2022 deprived several Muslim girls from exercising their right to education).

Hence, it appears that these reforms have been implemented neither through consultation with Muslim women at the grassroots level nor with women’s rights advocates or scholars. The complete absence of targeted outreach programs, educational initiatives, and awareness campaigns aimed at informing Muslim women about their roles and rights under the new Waqf (Amendment) Act indicates that this inclusion is more symbolic than substantive. Although these women are at times made the focal point of modernising personal law, they are marginalised in both community and state structures.

The second key argument that has been raised in favour of the Act in reference to Muslim women’s interests has been that female legal heirs would get their shares first before any property is dedicated to a Waqf, including Waqf-alal-aulad. Section 5 of the Amendment Act included the provision which states that,

“The creation of waqf-alal-aulad shall not result in denial of inheritance rights to heirs, including women heirs, of the waqif or any other rights of persons with lawful claims”

Let us unpack this: First, the original concept of a classic waqf is for charity-oriented donations (which includes for religious, educational, and charitable purposes). There is no mention of waqf-ul-aulad in the primary sources of Muslim law (Quran, sunnah/hadith, Ijma or Qiyas). The concept of waqf-ul-aulad was alien at the time of the Prophet Muhammad. It emerged through a judicial opinion/fatwa from only one school of thought (Hanafi).

The idea was to make the property for the family member until they cease to exist, and finally, the property goes to the public. This meant that the family benefits from the waqf eventually go for charitable purposes. Here, in the concept of waqf-ul-aulad, family members were not confined to men in any form of relationship with the deceased. Waqf-ul-aulad is gender neutral in theory and is not even confined to just the descendants. It can include spouses and parents as well. Islamic scholars have varied opinions on this concept. The Hanafi school of thought allowed this, provided that it ended in charity.

Under the principle of inheritance under Muslim law, property devolves to the legal heirs after the death of the owner of the property. This is because under Muslim law, you cannot determine the shares of legal heirs before death, as the shares may fluctuate depending on how many legal heirs survive the deceased. Meanwhile, waqf is made during the lifetime.

This creates a fundamental contradiction: if inheritance must occur first and waqf can only be declared in life, the two conditions can never co-exist. The provision thus makes the creation of waqf-ul-aulad practically impossible.

Hence, the Act, while on the surface may appear to be giving rights to female legal heirs, it is really of a colourable nature since the Waqf cannot come into existence as the two conditions which have been tied together are diametrically opposite. It ensures that the two conditions can never be fulfilled.

It is a structural flaw, one that is so fundamental against the basic principles of Muslim law, in terms of the timing of inheritance and waqf, that it can never be fulfilled. By putting this mandate, the Waqf (Amendment) Act is merely conflating the two different legal processes. The misalignment makes the execution of the provision legally challenging and practically impossible. This clearly shows how the inclusion of Muslim women is only symbolic and is being used to further the State’s agenda for ensuring no Waqf-ul-aulad comes into existence.

Even assuming that putting such a provision stating how women legal heirs shall be given priority in inheritance was well-intended, it does not define its execution as the Act does not have any mechanism or operation attached to it.

Who is going to ensure the female legal heirs get their shares? Is there any appointed official? How are these to be enforced? If the female heirs do not get the share, who will have the burden of proof? Considering how Muslim women are at the intersection of gender and religious marginalisation, would the State provide programs to ensure Muslim women are made aware of this?

Such far-reaching reformative measures when effectuated without substantial deliberation furthers the conditions of patriarchy.

Essentially, we are left with an amendment which appears progressive but would collapse under the heavy weight of its own misalignment and contradictions. Any law that ignores justice, progress and inclusion, and expects a celebration by mere showcasing of women as decorative tokens would result in a complete disorientation on this concept of Waqf.

But the real question which we should really be asked is this: How many more laws would be reformed in a superficial manner which would continue to only exploit the identity of Muslim women in this country without aiming for any systemic change in their and their community’s lived experiences? (The Leaflet — IPA Service)