Extent of Indian Waqfs
Justice Shashvat Kumar, who headed the Shashvat Committee has prepared a status report on Muslims in India in 2011 and the finding of this report were that Nationwide, wakf properties constitute a land bank of 6 lakh acres. There are 4.9 lakh registered wakf property, spread over an estimated area of 6 lakh acres, all over India. This make the wakf boards the second largest landholder in the country.
Root of the institution:
Literally speaking, the word wakf means standing, stopping or halting. According to the Dictionary of Islam by Thomas Patrick Hughes, Rupa and Company, Delhi, 1999, the term ‘Wakf’ signifies the appropriation or dedication of property to charitable uses and the service of God. An endowment. The object of such an endowment or appropriation must be of a perpetual nature, and none of the properties or land can be sold or transferred. If a person builds a mosque his right to the property is extinguished as soon as prayers have been recited in the building.
The root of the institution of wakf lies in an exhortation by Prophet Muhammad in his lifetime for contributions to the waging of Jihad. He had demanded such donations from his followers in Madina. Professor Asaf AA. Fyzee, in his book Outlines of Muhammadan Law, OUP, Delhi, 1999, has quoted the traditional source of Bukhari, according to whom the earliest wakf was that of Umar the Second Caliph. This wakf became the basis of the law on the subject. To quote:
Ibn Omar reported, 'Omar ibn al-Khattab got land in Khaybar: so he came to the Prophet, peace and blessings of Allah be on him, to consult him about it. He said, “O Messenger of Allah! I have got land in Khaybar than which I have never obtained more valuable property; what dost thou advise about it?” He said: “If thou likest, make the property itself to remain inalienable, and give (the profit from) it in charity”.
Institution for promoting Islam:
While charity might have been the original intention behind innovating the wakf, the institution gradually grew into an instrument of securing a source of revenue for protecting and promoting Islam. The Oxford History of Islam, OUP, New York, 1999, characterizes wakf as an Islamic source of revenue. To quote:
A study of north central Anatolia in the fifteenth and sixteenth centuries provides a deeper understanding of the workings of the land and tax systems. When the Ottomans obtained control of these regions in the mid-fifteenth century, they had to concede Turkish military rulers and Muslim religious leaders ownership rights to the land. In the course of the next century and a half the state struggled to dispossess the local notables and to reassign the tax rights to timar holders appointed by the central government. These tended to be fragmented small holdings often in the possession of the central government. The Ottomans thus gained control over the ulama and made them functionaries of the state, and they also co-opted the leading Sufi brotherhoods. Sufiled tribal rebellions were crushed during the fourteenth to the sixteenth centuries. The Bektashis became the patrons of the janissaries.
Urban Sufis were provided in the time-honoured manner with gifts, endowments, and a place in Ottoman court ceremony. The Mevlevi leaders had the ceremonial function of girding a new sultan upon his accession with a holy sword. The representatives of spiritual otherworldly power thus became the protectors of the state. In comparison with other Muslim societies, this was an extraordinary oganisational achievement, but it came at a high price. Insofar as the ulama and leading Sufis became functionaries of the state, they ceased to represent the mass of Muslims believers and could no longer protect the people from abuses of political power. To the extent that they were the servants of the state and the defenders of Ottoman legitimacy they could not effectively resist corruption in the government. As much as they became a class of functionaries dependent on government offices, on offices for their children and students, they became a self-interested and powerful interest group within the state itself. By the eighteenth century a closed aristocracy of Ottoman ulama was in existence.
The ulama were particularly favoured because they had plentiful opportunities to acquire properties through wakfs (endowments), which were not threatened with confiscation after death. Ulama families lasted longer in power than any other element of the government elite and a small group of families dominated the religious establishment. From 1703 to 1839, eleven Istanbul families accounted for twenty-nine of the fifty-eight shaykhs al-Islam.
As instrument of aggression:
In due course, wakf developed into an instrument of aggression. Professor Joseph Schacht of Columbia University. New York, in his Introduction to Islamic law, Universal Law Publishing Co., Indian reprint, 1997, wrote: The wakf is a good example of the composite nature of the raw material of Islamic law and of the qualitatively new character which its institutions acquired; the wakf has one of its roots in the contributions to the holy war which Muhammad had incessantly demanded from as followers in Medina another in the pious fundations (piae causae) of the Eastern Churches.
Changes in the Institution:
Wakf did not originate from the Holy Quran nor was it sanctified by the Hadith. The institution was, therefore, open to assessment and change as was required by the place and time. In the different countries, it tended to be treated differently. Joseph Schacht has commented on the various changes: Modernist legislative interference with Islamic law started modestly with the Ottoman Law of Family Rights of 1917, which was later repealed in Turkey but also remained valid in Syria, Lebanon. Palestine, and Transjordan (as they then were), and is still part of the family law of the Muslims in Lebanon and in Israel. Then, from 1920 onwards the impetus of modernist jurisprudence and of the modernist legislative movement inspired by it came from Egypt. This reshaping of Islamic law by modernist legislation has evoked much interest and inspired similar movements in other countries of the Near East in the Sudan, Jordan, Lebanon, Syria, Iraq, and Libya, and the laws enacted in those countries occasionally went even further than their Egyptian prototypes. The Egyptian act of 1946 served as a model for the Lebanese law of 1947 on wakf and a Syrian act of 1949 anticipated the Egyptian act of 1952 in abolishing the private or family wakfs. So much for the changes set off by Turkey and Egypt, both Muslim countries.
Position under the British Empire:
It is interesting to quote Schacht on what the British as empire had to do in the colonies: The application of English legal reasoning to institutions of Islamic law occasionally led to difficulties, as in the case of wakf. An essential feature of the Hanafi wakf is the permanence of its purpose, and if the beneficiaries are, for instance, the descendants of the founder, the poor or some other permanent purpose must be appointed as subsidiary beneficiaries.
The Privy Council, however, held in 1894 that the ultimate reversion to the poor was illusory, and that this kind of 'family wakf' had to be treated as 'simple gift of inalienable life-interests to remote unborn generations of descendents which were forbidden in Islamic law, and, therefore, invalid. This decision which invalidated a fundamental institution of Islamic law of great practical importance, created such dismay in India that the legislature had to step in and pass the Mussalman Wakf Validating Act of 1913, which restored the doctrine of Islamic jurisprudence concerning the family wakf. But as this Act was not retroactive, the Privy Council in 1922 could still hold that family wakfs created before 1913 were invalid, and it had to be made retroactive by another Mussalman Wakf Validating Act of 1930.
The French colonies were more dynamic, especially after getting their independence. Tunisia under President Habib Bourguiba took the drastic step of abolishing wakfs in 1956. As Schacht put it: By legislation enacted in 1956, Tunisia has put herself in the forefront of the movement of legislative modernism. First of all, the so-called public wakfs were abolished, and their assets became the property of the state, a measure more far-reaching than the abolition of the so-called private wakfs in Syria and in Egypt.
Views of Professor Asaf AA Fyzee:
Professor AA Fyzee, in his book, Outlines of Muhammadan Law, OPU, Delhi, 1990, also commented at length on the developments in wakf across several countries. Here is what he had written: The importance of the institution will be better understood if we take into consideration the enormous extent of wakf land or, the possessions of the DEAD HAND as he called it in the various Muslim countries. In Turkey of 1925, three-fourths of the arable land, estimated at 50,000,000 Turkish pounds, was endowed as wakf. At the end of the nineteenth century, one-half of the cultivable land in Algiers was dedicated. Similarly, in Tunisia, 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 twentieth century, first by France and later by Turkey and Egypt, that the possession of the Dead Hand spelled ruin. The institution of wakf has in some respects been a handicap to the natural growth and development of a healthy national economy.
In 1830, the French Government took over the babous in Algiers and later on in Morocco. Elsewhere Government control was made more stringent. In 1924, the Turkish Republic abolished the Ministry of Wakfs and it was taken over by general directory, or by the secular state, administration, as we would call it. In Egypt, it was Muhammad Ali who first confiscated all agricultural wakfs and compensated the beneficiaries, and in 1924, the Wakf Ministry came directly under the control of parliament. Although in Russia wakfs existed in Muslim districts for centuries, soon after the revolution such endowments were confiscated and declared state property. Fyzee took the opportunity to give his views on the nature of wakf as well as its effects on the people and society. It is best to read his words.
The religious motive of wakf is the origin of the legal fiction that wakf property belongs to Almighty God; the economic ruin that it brings about is indicated by the significant phrase ‘The Dead Hand’. Wakf to some extent ameliorates poverty, but it has also its dark side. When a father provides a certain income for his children and descendents, 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 foundations and endowments obtain property by shady means, amounting even to extortion and exploitation. Agricultural land deteriorates in the course of time; no one is concerned with keeping it in good trim; the yield lessens. In India, instances of the mismanagement of wakfs, of the worthlessness of mutawallis (managers), and of the destruction of property have often come before the courts. Considering all these matters, it can by no means be said that the institution of wakf as a whole has been an unmixed blessing to the community.
Everything written above points in only one direction and that is the summary abolition of wakfs in India. The institution is not sacred or a part of the sharia. It was a colonial instrument of raising revenue for the ulema in order that oligarchic regimes could keep their grip over power. The institution of the wakf make the Muslims the largest urban property owners in India. It has proved difficult to obtain accurate figures from the municipalities; one is, therefore, confined to impressions gained from mutawallis or wakf managers and conjectures by off-the-road civic officers. Nevertheless, some of the estimates are surprisingly large. For example, over half the land in Jaunpur city belongs to wakfs. Nearly all the land on the hillocks of Kannauj is wakf territory. Ahmedabad, according to a veteran mutawalli based in the Jamalpur locality, should be some thirteen per cent wakf owned. Kolkata exceeds five per cent and Patna eight.
Most states have their own wakf laws and the Centre has almost always had an overall law operating; the last one was the Wakf Act 1995, yet there appears to be little monitoring, which normally should accompany the governmental recognition or any type of institution. Nor is there an all-India list or census of the tens of thousands of wakfs including the unregistered ones. To refer to Dr Ahmedullah Khan, there is no need to register a wakf. The wakf user or usage is good enough and the terms are liberal. For instance, even a grave that is not in use can be claimed post facto as a wakf so long as the land is reasonably studded with graves.
According to Fyzee, almost any tangible item, however moveable, can be part of a wakf including cattle, agricultural implements, the Holy Quran, horses, camels, swords et al. Yet, all the property of every wakf stands in the name of Allah the Almighty, according to the recommendations of the Wakf Enquiry Committee of 1976. If the involvement of Allah by an Indian committee was legitimate, how was it that Muslim countries like Egypt, Turkey, Algeria and Morocco dared to abolish their wakfs? On the other hand, if the involvement of Allah is legitimate, does it behove a secular state to be the guardian of Allah's property? Mind you, this was not a historical legacy, but a recent enquiry committee that eventually led to the passing of the Wakf Act 1995.
In India, the wakf enjoys a unique advantage in that it is above all other laws. No other legislation can interfere with what a wakf does under its own law. For example, the Urban Land Ceiling Act can apply to all urban centres but not to wakf properties. No other religion or community enjoys such a privileged position. The Hindu undivided family may be good for a separate income-tax file, but its advantage does not go beyond. Nor have the Christian, Parsee or Jewish communities been given any overriding privilege. It is a glaring example of inter-communal discrimination.
In India, the institution was used, rather abused, for attracting and sustaining a feudal class in a conquered land. With the advent of Partition and the creation of a home land for the Muslims of India, the wakf became an eyesore of discrimination between one community and the rest of the Indian people. Incidentally, soon after Independence, the princely states were integrated into the national mainstream, the zamindaris and the jagirdaris were abolished. Where then was the justification for perpetuating the institution of wakf? The answer evidently lies in doing what was done in Egypt decades ago. And that is for the government to take over the wakf properties after duly compensating the current beneficiaries.