Author: Prafull Goradia
Publication: The Pioneer
Date: October 5, 2010
URL: http://www.dailypioneer.com/287714/Relic-of-the-past.html
Many progressive Muslim countries have abolished
the institution of waqf as it does not serve any purpose in modern times
Following the Allahabad High Court judgement
on Ayodhya on September 30, many an expert comment was expressed, especially
on television news channels. A fairly common thread was that a waqf property
could not be parted by human beings, since it was owned by Allah. No non-Muslim
commentator appeared aware of what really is a waqf, how the property came
into Muslim hands and was then transferred to Allah.
Literally speaking, the word 'waqf' means,
standing, stopping or, halting. According to the Dictionary of Islam by Thomas
Patrick Hughes, the term waqf signifies the appropriation or dedication of
a property to charitable uses and the service of god; an endowment. Professor
Asaf AA Fyzee, in his book, Outlines of Muhammadan Law, has quoted the traditional
source of Imam Bukhari, according to whom the earliest waqf was that of Caliph
Umar II. 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 consult
the Prophet. The Prophet advised him to make the property inalienable, and
give the profit from it in charity.
The institution of waqf gradually grew into
a means of raising revenue to promote Islam. The Oxford History of Islam,
OUP, New York, 1999, characterises waqf as an Islamic source of revenue. To
quote: The ulema were favoured by such opportunities to acquire properties
through waqfs. Ulema families lasted long in power and thus, a small group
dominated the religious establishment. From 1703 to 1839, eleven Istanbul
families accounted for twenty-nine of the fifty-eight shaykh al-Islams.
In due course, the waqf developed into an
instrument of aggression. Professor Joseph Schacht of Columbia University,
New York, in his Introduction to Islamic Law, wrote: The waqf 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 waqf has one of its roots
in the contributions to the holy war, another in the pious foundations of
the Eastern Churches.
The institution, however, was open to assessment
and change was required by the place and time. In different countries, it
tended to be treated differently. Schacht has described the various changes:
They started modestly with the Ottoman Law of Family Rights of 1917 and got
extended to Syria, Lebanon, Palestine and Trans-Jordan. Then from 1920 onwards,
the impetus of modernist jurisprudence and of the legislative movement inspired
by it, came from Egypt. The new legislation inspired similar movements in
Sudan, Jordan, Lebanon, Syria, Iraq and Libya. The Egyptian Act of 1946 served
as a model for the Lebanese law of 1947 on waqf, and a Syrian Act of 1949
anticipated the Egyptian Act of 1952 in abolishing the private or family waqfs.
The French colonies were more dynamic, especially
after getting their independence. Tunisia under President Habib Bourguiba
took the drastic step of abolishing waqfs in 1956. The application of English
legal reasoning to institutions of Islamic law occasionally led to difficulties,
as in the case of waqf. An essential feature of the Hanafi waqf is the permanence
of its purpose. If the beneficiaries are, for instance, the descendants of
the founder, the poor or some other purpose must be appointed as subsidiary
beneficiaries. The Privy Council, however, in Abu Fata case 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 descendents.
Prof Fyzee has also commented at length on
the developments in waqf across several countries. He wrote that the institution
will be better understood if we take into consideration the enormous extent
of waqf land or, in the possessions of the Dead Hand - in the various countries
of Islam. In the Turkey of 1925, three-fourths of the arable land 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 by Turkey
and Egypt - that the possession of the Dead Hand spelled ruin. The institution
of waqf was in some respect a handicap to development. Fyzee went on to say
that 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 also its dark side. In India, instances of the mismanagement
of waqfs, of the worthlessness of mutawallis (managers) and of the destruction
of waqf property have often come before the courts.
In India, waqfs were established by Muslim
rulers and their followers by confiscating Hindu lands and properties. The
waqf makes the Muslims, the largest urban property owners in north India.
Some estimates are large. For example, over half the land in Jaunpur city
belongs to waqfs. Nearly all the land on the hillocks of Kannauj is waqf property.
According to a veteran mutawalli based in the Jamalpur locality, waqf owns
some 13 per cent of Ahmedabad. Kolkata exceeds five per cent and Patna eight.
If the involvement of god by the Indian Waqf
Inquiry Committee of 1976 was legitimate, how was it that Muslim countries
like Egypt, Turkey, Algeria and Morocco dared to abolish their waqfs? On the
other hand, if the involvement of god is legitimate, does it behove a secular
state to be the guardian of god's property? In India, the waqf enjoys a unique
advantage in that it is above all other laws. No other legislation can interfere
with what a waqf does under its own law. For example, the Urban Ceiling Act
can apply to all urban centres but not to waqf properties.
Everything written above points in one direction
and that is the summary abolition of waqfs in India. It was a colonial instrument
of raising revenues for the ulema in order that oligarchic regimes could keep
their grip over power.
