Once a waqf, always a waqf

Its assets stand in the name of Allah.

Union Minister for Minority Affairs Mukhtar Abbas Ansari has announced that the government would be setting up waqf boards for Jammu, Kashmir and Ladakh. Ansari has also stated that all these decades, the dynastic rule of the Abdullahs and later of the Mufti family, exercised control over Muslim affairs and prevented them from being administered under the waqf arrangement. The government’s move according to Ansari, is an attempt to bring them under the umbrella of the waqf.

It is, therefore, instructive to understand what a waqf really is. Literally, the word waqf means standing, stopping or halting. The Dictionary of Islam by Thomas Patrick Hughes (Rupa & Company, Delhi; 1999) explains the term waqf. It is the appropriation or dedication of property for charitable uses and service of God; an endowment. The object of such an endowment or appropriation must be of a perpetual nature, and no property or land can be sold or transferred. Just as when a person builds a mosque, his right to property is extinguished as soon as prayers have been recited in the building. So too is the case when an asset is donated to a waqf.

The root of this institution lies in Prophet Muhammad’s exhortation in his lifetime for contributions for waging jihad. He had demanded such donations from his followers in Medina. Professor Asaf A.A. Fyzee, in his book Outlines of Muhammadan Law (OUP, Delhi; 1999), quotes the traditional source of Bukhari, a great scholar of Hadith, according to whom the earliest waqf was that of Umar the Second Caliph. This waqf 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.’”

The Oxford History of Islam, OUP, New York, 1999 characterises waqf as an Islamic source of revenue. To quote: “A study of north-central Anatolia in the 15th and 16th 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-15th 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 (Ottoman land grants) holders appointed by the central government. Still, much property remained mulk (private property) or waqfs (endowments), but these tended to be fragmented small holdings often in the possession of the central government. The Ottomans thus gained control over the ulema and made them functionaries of the state, and they also co-opted the leading Sufi brotherhoods.”

The representatives of spiritual otherworldly power thus became the protectors of the state. In comparison to other Muslim societies, this was an extraordinary organisational achievement, but came at a high price. Insofar as the ulema and leading Sufis became functionaries of the state, they ceased to represent the Muslim masses and could no longer protect them from abuses of political power. They were now servants of the state and defenders of Ottoman legitimacy and could not effectively resist corruption in the government. Becoming a class of functionaries dependent on government patronage for their offspring and students, they became a powerful interest group within the state itself.

1920 onwards, the impetus of modernist jurisprudence and modernist legislative movement inspired by it came from Egypt. The most important milestones of this legislation in Egypt were Acts No. 25 of 1920 and No. 25 of 1929 on the law of family. Act No. 462 of 1955 abolished the kadis’ tribunals (together with all denominational jurisdictions of personal status). This bill aimed at restricting polygamy and the husband’s right to unilaterally repudiate his wife. This reshaping of Islamic law by modernist legislation evoked and inspired similar movements in other countries of Middle East, like Sudan, Jordan, Lebanon, Syria, Iraq and Libya. The laws enacted in those countries occasionally went further than their Egyptian prototypes.

The application of English legal reasoning to institutions of Islamic law led to difficulties, as in the case of waqf. An essential feature of the Hanafi waqf 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 waqf” had to be treated as “simple gift” of inalienable life-interests to remote unborn generations of descendants which were forbidden in Islamic law and therefore, invalid. This decision invalidated a fundamental institution of Islamic law of great practical importance and created much dismay in India. The legislature had to pass the Mussalman Waqf Validating Act of 1913, restoring the doctrine of Islamic jurisprudence concerning the family waqf.

French colonies were even more dynamic and drastic especially after getting their independence. Tunisia under President Habib Bourguiba abolished waqfs in 1956. Professor Asaf A.A. Fyzee, in his book Outlines of Muhammadan Law (OUP, Delhi; 1999) commenting at length on the developments in waqf across several countries, said: “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-fourths of the arable land, estimated 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 oneeighth, 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 institution of waqf was in some respects a challenge to the natural growth and development of the national economy.”

In 1830, the French government took over the habous in Algiers, and later 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. Muhammad Ali in Egypt first confiscated all agricultural waqfs and in 1924 the Waqf Ministry came directly under the control of Parliament. In Russia, waqfs existed in Muslim districts for centuries, but after the revolution were confiscated and declared state property. Fyzee took the opportunity to give his views on the nature of waqf as well as its effects on the people and society: “We must consider briefly the advantages and disadvantages of the institution. The religious motive of waqf is the origin of the legal fiction that waqf property belongs to Almighty 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 also…(another) side. When a father provides a certain income for his children and descendants, the impulse to seek education and the initiative to improve their lot gradually decrease. 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, and even perpetual leases come to be recognised. In India, instances of the mismanagement of waqfs and of the destruction of waqf have often reached the courts.” Waqfs have been abolished in one country after another but this is not the case in India.