Social and legislative history of the Islamic trust (Waqf) in India

by May 14, 2018 0 comments

Social and legislative history of the Islamic trust (Waqf) in IndiaSince the institution of Waqfs was came into existence in 1185 AD, no action has been taken to control its adverse effects. Contrary to this fact, the law was made in favor of the stakeholders

Whether the Uttar Pradesh Government can reclaim properties which stood on agricultural land or transfer them as Waqf assets by holders having no ownership is a topical question. It appears that the Allahabad High Court had asked the Government to reclaim them. However, the apex court has, on appeal, stayed the judgement. It would, therefore, be interesting as well as relevant to know how the institution of Waqf was established in India.   

The Muslim strategy, ardently supported by self-styled secularists, is to insist that the Babri is a disputed property which is best adjudged by a court of law. Since in our country justice is invariably delayed, the hope is that no decision is likely to be made in the foreseeable future. Thereafter, the scope for an appeal is enormous. To play on the soft sentiments of most Hindus may not be difficult, especially on the plea that a property when turned into a Waqf goes into the ownership of Allah, the merciful.

The Waqfs are the biggest urban landlords in India. Their origin dates back to the life and times of Prophet Muhammad. The institution began with a place called Khaybar in Arabia. It was the genius for turning a conquered property into an inalienable ownership. So is written by Asaf AA Fyzee in his book, Outlines of Muhammadan Law, Oxford University Press (OUP), Delhi, 1999.

Joseph Schacht, an international authority on Islamic law, in his book, originally published by OUP in 1964, said, “The Waqf has one of its roots in the contributions to the holy wars which Muhammad had incessantly demanded from his followers in Medina”. For one thing, a Waqf property is an outcome of conquest. If any further proof of expropriation was required in this context, the temple-turned-mosque provides it. The corollary of this development would be that the conflict over the temples should extend to question the validity of the institution of Waqf itself.

Uncannily, none other than the Caliph of all Sunni Islam and the Ottoman emperor thought it fit to abolish the institution in his empire in 1917. Thus, there are no Waqfs in Turkey, Libya, Egypt, Sudan, Lebanon, Syria, Jordan and Iraq. In 1956, on the morrow of Tunisian independence, President Habib Bourguiba abolished Waqfs.

Although every Waqif or donor claims that he has handed over the property to Allah, the merciful, Muslim leaders, ranging from the conservative Caliph to the modern Bourguiba, did not think so. Fyzee goes on to observe that the importance of the institution will be better understood if we take into consideration the enormous extent of Waqf land or the possessions of the Dead Hand in the various countries of Islam. In the Turkey of 1925, three-fourth of the arable land, valued at 50.000.000 Turkish pounds, was endowed as Waqf. At the end of the 19th century, one half of the cultivable land in Algiers was dedicated. Similarly, in Tunis, one-third; and in Egypt one-eighth of the cultivated soil was ‘in the ownership of God’. But it was already realised by the beginning of the 20th century, first by France and later in Turkey and Egypt, that the possession of the Dead Hand spelled ruin. The institution of Waqf was in some respects a handicap to the natural growth and development of a healthy economy.

In 1830, the French Government took over the habous or Waqf in Algiers, and later on in Morocco. Elsewhere, Government control was made more stringent. In 1924, the Turkish republic abolished the Ministry of Waqfs and it was taken over by a general directory, or by the secular state administration, as we would call it. In Egypt, it was Muhammad Ali who first confiscated all agricultural Waqfs and compensated the beneficiaries and in 1924, the Waqf Ministry came directly under the control of Parliament. Although in Russia, Waqfs existed in Muslim districts for centuries, soon after the revolution, such endowments were confiscated and declared state property.

The religious motive of Waqf is the origin of the legal fiction that Waqf property belongs to God; the economic ruin that it brings about is indicated by the significant phrase ‘The Dead Hand’. Waqf, to some extent ameliorates poverty, but it has a dark side too. When a father provides a certain income to his children and descendants, the impulse to seek education and the initiative to improve their lot gradually decreases. Charitable aid often keeps people away from industry, and lethargy breeds degeneration. Furthermore, some people, who desire fame by making endowments, obtain property by shady means, amounting to exploitation. Land deteriorates in the course of time; no one is concerned with keeping it in good trim; the yield lessens. In India, instances of mismanagement of Waqfs; of the in effectiveness of mutawallis (managers); and of the destruction of Waqf property have often come before the courts.

For India, there are several other arguments that support the abolition of Waqfs. The dispute over a Waqf in the late 19th century eventually went up to the highest court of appeal, namely the Privy Council in London. The four British judges described the Waqf as “a perpetuity of the worst and the most pernicious kind” and declared it to be invalid. In the Privy Council, the judges were Lord Watson, Lord Hobhouse, Lord Shand and Sir Richard Couch.

A gift may be illusory whether from its small amount or from the uncertainty. If a man were to settle a crore of rupees, and provide ten for the poor, that would be at once recognised as illusory. It is equally illusory to make a provision for the poor under which they are not entitled to receive a rupee till after the total extinction of a family; possibly not for hundreds of years; possibly not until the property had vanished away under the wasting agencies of litigation or malfeasance or misfortune; certainly not as long as there exists on the earth one of those objects whom the donor’s really cared to maintain in a high position. Their Lordships agree that the poor have been put into this settlement merely to give it a colour of piety, and so to legalise arrangements meant to serve for the aggrandisement of a family.

Fyzee has deeply regretted that the Privy Council judgement did not prevail in India. The Mussalman Wakf Validating Act, 1913, proved to be the saviour of this institution. No attempt has since been made to either abolish or curb the adverse effects of Waqf. On the contrary, the law was made more favourable to the Muslims as a result of the Act of 1995. To quote Fyzee:

Speaking for myself, and in the light of actual experience, it is unfortunate that the opinion of Lord Hobhouse in Abul Fata’s case did not prevail in India.

Nevertheless, Waqfs in India date back almost to the beginning of the Sultanat of Delhi. S Athar Husain and S Khalid Rashid, in their work, Waqf Laws and Administration in India, Eastern Book Company, Lucknow,1968, have traced their history. According to them, Sultan Muizuddin Sam Ghaor dedicated two villages in favour of the Jama Masjid of Multan and handed its administration to Shaikhul Islam.

Another commentator, Ahmedullah Khan has recalled several properties which were brought under Waqf much earlier. For example, the dargah of Moinuddin Chishti at Ajmer Sharief as well as Nagaur in Rajputana, Hansi and Ajodhan in Punjab, the dargah-i-Sabiri at Kalyar and the dargah of Shaykh Ahmed’ Abdal Haqq at Rudauli. The Government of independent India found it expedient not to interfere with the operation of the Waqf laws. Political expediency dictated this unfortunate approach just as Article 44 of the Constitution with regard to the personal law of the Muslims has remained a pious lip-service.

(The writer is a well-known columnist and an author)

Writer: Prafull Goradia

Courtesy: The Pioneer

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