Waqfs: India

India can boast to be the country with the largest number of waqfs. The total has been estimated as exceeding 250,000. Indian Muslim Awqaf or Trusts are running 2,500 secular and technical schools, colleges, and orphanages and at least 60,000 madrasahs and 200,000 mosques (Rashid, 1987: 93; Rashid, 1997). A rough summary of a survey of Indian waqf properties conducted way back in 1976 was as follows:

Number of Waqfs in India (Summary of the 1976 Survey)

Although incomplete and out of date, this survey has been submitted here in order to give an idea to the reader about the vastness of the Indian waqf system and its diffusion in the country. Moreover, waqfs are being discovered in all Indian states almost as a matter of routine. It is for this reason that Rashid is convinced that the total number of Indian waqfs exceeds 200,000 and approaches to a quarter million.

The earliest known waqf in India can be traced back to the last years of the twelfth century when Muhammad ibn-Sam, one of the Ghurid Sultans, established a waqf in his name. After the establishment of the Delhi Sultanate (1206) many other waqfs followed. One of these was the waqf endowed for the maintenance of the tomb of Sultan Qutb Uddin. Sultan Muhammad bin Tuqlaq had appointed Ibn Batuta, the famous Arab traveller, as the trustee of this particular waqf.

Northern India represented the greatest frontier for North-Eastern Islam. Turks, Mongols, Afghans and Iranians all came and settled in this vast sub-continent. The area must have been similar to the Balkans in the far Northwest in the sense that nearly everywhere the Muslims constituted a minority. The first Muslim state in India was founded in the Sind during the eighth century. But its influence on the rest of the continent was negligible. It was the Central Asian Muslims of Turkic origin who penetrated the sub-continent via the Northwest Passage who were the greatest state builders. The Sultanates of Delhi, Jaunpur, and the Gujarat were all established by them.

Sufi sheikhs belonging to a myriad of orders played a crucial role in the conversion of the indigenous peoples. Almost every ruler had a favourite sheikh and established waqfs to support his shrine. But it was not only the Muslim sheikhs who received grants from the rulers. Just as the Ottomans supported the Christian churches in the Balkans, Hindu priests in the sub-continent also received imperial support from the Mughal rulers. The term waqf was also used in this case even though referring to a non-Muslim institution. Hindus picked up the terminology and used it to describe their own endowments (Kozlowski, 1985: 22-25). Not only public graveyards but also the great Taj Mahal and other such tombs were supported by the waqfs. This sort of imperial behaviour was imitated by the nobility and the merchants. Thus endowment of a waqf became a highly respected norm of social behaviour.

In Mughal India (the Mughals never referred to themselves as Mughals, but as the Bayt-i Timur or Ça atay), the attempts to combine the Timurid heritage and the Perso-Islamic statecraft were complicated by the prevailing local conditions. First of all, the Mughals did not push the construction of pious buildings and monuments as much as the Ottomans. This is because, Northern India had been controlled by Muslim rulers from the 13th century onwards. The earlier Muslim states had already made ample provision for the support of the mosques as well as for the maintenance of religious notables. Consequently, this Mughal attitude is more similar to the Ottoman policy in Egypt rather than in the Balkans or Anatolia.

None of the pre-Mughal dynasties survived for more than 60 years. As one succeeded the other, much like the situation in Egypt, the new dynasty took over and preserved the endowments made by the earlier ones. When in the year 1526 the Delhi Sultans were ousted by the Mughals, the predecessors’ traditions were continued and many new waqfs were also established.

Waqfs in India were subjected to a hierarchy of control the basic elements of which can be identified as follows:

1. Central Administration

2. Provincial Administration

3. Local administration

Neither the Sultans nor the Mughals created a separate department for the control of the waqfs. The Sadr us Sudur, the Mughal equivalent of the Ottoman eyhülislam, was concerned with the waqfs. He entrusted the supervision of the awqaf at provincial level to the sadrs (sadr-e-sabah and sadr-e-sarkar). These sadrs, however, were not empowered to collect revenues from the waqf properties. This right was given to the diwan exclusively. The local administration was entrusted to the kadıs who could be found even in the small parganahs. On the spot supervision over the waqfs was administered by the kadıs. The kadıs inspected the waqf accounts kept by the village mullas (müezzins).

In the final analysis it was the trustees who were responsible for looking after the affairs of each waqf. This is still so today. As long as the trustees remained within the Islamic law, they were not interfered with by the administrative machinery (Ibn Battuta appointed 460 persons to take care of the tombs completely upon his own initiative). Moreover, the sultans respected the legally appointed trustees. When Sultan Aladdin (1296-1316) restored a large number of waqfs, which were neglected, and in ruins, he sought out and restored the trustees who had been expelled previously. But if the inspections revealed that a trustee was corrupt, the Sultan replaced him. The waqfs were subject to a highly centralised system of inspection. But they were left free in their normal day-to-day functioning.

Legal Issues

All the basic principles of the classical Islamic law, pertaining to waqfs, particularly that of the Hanafi School, are also valid in India. While we will refer to them whenever necessary, a summary of these will not be provided here as they are well known and have already been mentioned above.

What is of greater interest is the impact of British colonisation on the waqf affairs. There are two conflicting forces here: while, on the one hand, it is acknowledged that the British generally applied the Shari’ah to the Indian Muslims as a matter of policy, on the other hand, the East India Company was granted the power to make its own laws in India, so long as these laws were reasonable and not contrary or repugnant to the laws of the mother country.

This policy of non-interference with the Islamic law was dictated by three main considerations:

1. The colonial power did not want any break with the past

2. The primary interest of the British in India was to conduct trade and trade depended on the preservation of security

3. As an interference with the religious beliefs and customs of the “natives” would undermine security, the British had no desire to interfere with the religious susceptibilities of their subjects (Rashid, 1983: 163-164).

The result of these conflicting forces was the eventual co-existence of the two systems of law and a subtle erosion of the Shari’ah. How this gradual erosion affected the Indian waqf system will be explained below.

When the East India Company in 1772 decided to claim sovereign rights and the power of jurisdiction outside its “factories”, the preservation of the institutions of Islamic law concerning the family law, succession and the Law of Waqfs was guaranteed to the Muslims, and this guarantee has remained valid ever since. According to strict theory, the whole of Islamic law, including the rest of Civil Law, Penal Law, and the Law of Evidence ought to be regarded as sanctioned by religion, but no significant voice of dissent was raised when Islamic law in these last was superseded by codes inspired by the British in the course of the nineteenth century.

This process started with the Bengal Regulation VII of 1832 which superseded both Hindu and Muslim laws of succession. Under them conversion to another religion would be grounds for exclusion from inheritance. This and a host of other laws passed at the insistence of the Christian missionaries, basically attempted to protect the rights of any Hindu or Muslim converted to Christianity.

The Bengal Regulation was then followed by 6 enactments, the Indian Succession Act, the Indian Contract Act, the Negotiable Instruments Act, the Indian Evidence Act, the Transfer of Property Act and the Criminal Procedure Code. All of these enactments superseded the principles of Shari’ah (Rashid, 1983: 167).

Schacht attaches great importance to these developments on the grounds that the idea of a secular law had for the first time been accepted by the leaders of an important Islamic community. As early as 1772, British judges had replaced the kadis in British India. The judges were originally assisted by “legal officers” who were chosen from among the Muslim scholars. These were, in fact muftis whose duty it was to state the correct doctrine of Islamic law for the benefit of the judge. As time went on, the judges themselves in the Muslim parts of British India were more and more recruited from the Indian Muslims. But all judges were trained in English law, and English legal concepts such as “precedent”. Gradually general principles of English common law and equity infiltrated more and more into Islamic law as applied in India. Last but not least, the jurisdiction of the Privy Council as a final court of appeal could not fail to influence the law itself. In this manner, Islamic law in British India has grown into an independent legal system, substantially different from pure Islamic law. This difference is reflected even in its very name; the Anglo-Muhammadan law.

Out of this law, a new Anglo-Muhammadan jurisprudence has grown, a jurisprudence whose aim, in contrast with traditional Islamic one, was not to evaluate a foreign body of legal raw material from the Islamic angle, but to apply, inspired by modern English jurisprudence, autonomous juridical principles to Anglo-Muhammadan law. The result is a unique symbiosis of Islamic and English legal thought in British India. But this kind of solution is not open to the modern jurists in the Arab countries of the Middle East.

There, Western influence on Islamic law and jurisprudence was not technically legal as it was in India, where the influence still exerts itself through the general cultural medium of Islamic modernism (Schacht, 1959: 111-113).

The replacement of the kadis was followed only one year later by another momentous change: The 1793 Permanent Settlement in Bengal. This was the direct consequence of the disastrous British attempt to apply tax-farming in Bengal. Having failed in this, they changed course and decided to introduce private ownership of land subject to taxation. Since the British preferred to deal with a few individuals in the collection of land revenue, they decreed that the zamindaris, (holders of Mughal era land tenures), be given permanent title to the lands forming their “estates”. Officials did not agonise whether the zamindaris had owned their land before the settlement. The English simply did not understand the complex subtleties of the Islamic land ownership with its multiple claims. Nor did they care to learn the differences between rakaba and tasarruf mentioned previously. Lord Cornwallis summed up the situation as follows:

“It is immaterial to government what individual possesses the land, provided he cultivates it, protects the cultivator, ryot, and pays public revenue”.

Thus the “Permanent Settlement” granted private property rights in India. After the settlement, land could be used as a security for a loan and could be confiscated by the creditor. The land could also be traded and inherited (Kozlowski, 1985: 33). The zamindars received permanent title to the lands forming their estates subject to the payment of taxes.

The “Permanent Settlement” had a profound effect on Indian waqfs. As elsewhere in the Islamic world, sultans and notables in medieval India considered alms giving a basic Islamic duty. Nearly all of the ecclesiastical and educational institutions were maintained through the waqf system. The institutions of soyurgal or madad-î ma’ash were land grants endowed with the purpose of supporting educational institutions and relieving the learned from the burdens of daily life. These altruistic institutions were so well established and respected by all layers of the society that they had even survived the collapse of the Mughal administration. Around 1765, the extent of madad-î ma’ash grants amounted to one quarter of the total land holdings of the Bengal province.

The total disregard for Islamic property rights expressed by Lord Cornwallis, himself, and exhibited by those who imposed the “Permanent Settlement” meant that much of this land became the personal property of the trustees, mutawallis, controlling these lands. In any case, these grants were officially abolished by the British in 1828. In 1863 the Religious Endowment Act brought another fundamental change. With this Act, all the properties of the pious waqfs, which were previously under the superintendence of the Board of Revenue, were transferred to the trustees (Husain and Rashid, 1979: 20). Eyewitnesses have reported that as a result of these developments, which victimised the beneficiaries of these awqaf;

“Hundreds of ancient families were ruined and the educational system of the Muslims, which was almost entirely maintained by rent-free grants, received its deathblow. The scholastic classes of the Muslims were … absolutely ruined.”

Not only this, but the officials of the East India Company diverted the funds dedicated to Muslim religious education to English education. Thus the estates endowed for the provision of Islamic education were used with total disregard for the original purpose of the founders. In 1871 the Calcutta College was headed by an English principal whose annual salary of 1,500 pounds was paid by an Islamic endowment. The British Government tried to cloak this blatant misuse by attaching a small Muslim school to the English College. But, out of a total income of 5,260 pounds only 350 were allocated to the little Muslim school and out of the 300 boys in the English College not even 1% of the pupils were Muslims (Rashid, 1983: 163).

The British were not satisfied with the “permanent settlement”, abolishment of the Mughal land grants and the 1863 Act. Viewed together, these “reforms” obviously had one clear goal; establishment of private ownership of land and rendering it a freely tradable commodity. In this context they were delighted about the Islamic law of inheritance as it confirmed their own concepts of wealth and property, which were that property was both alienable and inheritable and that the Mughal emperor was not the sole proprietor of land throughout his empire. Sir William Jones considered the Islamic law of inheritance unique in that it bore “no resemblance to any other system of inheritance that the world ever knew”.

The egalitarian nature of the law was admired particularly when compared with the British primogeniture. Consequently, the British judges applied the Islamic law of inheritance with more rigour than the kadis ever had. But although this is understandable, it did create problems for the Muslims. This is because; having introduced full private ownership of land and at the same time subjecting it to the Islamic law of inheritance, a very tense situation was created. Those owners who wanted to avoid fragmentation of their newly acquired lands faced a dilemma.

The new Muslim landowners reacted to the situation in the only way they knew: they began to convert their estates into waqfs during the early nineteenth century. The waqf enabled these owners/founders to apply not only primogeniture but also to avoid fragmentation of their lands. But soon, rejected heirs took their cases to the courts. Confronted with the choice of upholding the terms of a family waqf or dividing an estate according to the Islamic inheritance laws, the judges customarily preferred the latter which helped them to promote the concept of private property. Thus the British ended up provoking the wealthy classes because they had: created private ownership of land by giving title deeds to the land; rigidly enforced the Islamic law of inheritance and thus triggered fragmentation and finally, denied the right to establish family endowments.

Beginning in 1879 a series of cases came to the courts most of which involved Muslim borrowers who had pledged a share of a family waqf and failed to repay the Hindu creditor. When the creditor had the land seized, a process sanctioned by the Permanent Settlement, endowment beneficiaries demanded the return of the land by proving that it was a waqf. Thus English and Islamic laws dramatically contradicted each other. One of these cases, Abd al-Fatah v. Russomoy, was referred to the Privy Council (1894) which declared family waqfs invalid on the grounds that the family endowments served only the interests of the founders’ family and did not serve a pious purpose.

This ruling made by the highest court of the British Empire, blatantly disregarded the Prophetic traditions and, predictably, it led to a fierce reaction from the Muslims. The most powerful Muslim political associations began to contest the Privy Council’s decision on the grounds that family endowments had always been approved by the highest religious authorities since the earliest era of Islam. The government remained unconvinced and maintained its position, which had been summarised by the Bombay High Court already in 1873;

“A waqf for a family settlement creates a perpetuity of the worst description, for it prevents the alienation of the house forever and necessitates its use in a manner which, with the natural increase in the number of descendants would probably render impossible, even if they would be willing (which could hardly be expected) to live amicably under one roof throughout all generation” (Diwan, 1992: 132).

Not everybody agreed with these arguments though, and the ruling was criticised even by other British judges well informed about India. Sir W.Comer Pethersan, Chief Justice of Calcutta High Court, wrote in a paper published in Law Quarterly Review of April 1899 as follows:

“The joint family is the cherished institution which has enabled them (Indians) to exist for ages without either a poor law, or public hospitals or charitable institutions. One of the most curious things in the history of the administration of Eastern Law by European judges has been the persistent way in which they have attacked this particular institution, in the interest of the money lenders, in precisely the same way that they have attacked the Muhammadan family settlements, which are known as waqfs, and by means of which Muhammadans in all countries are accustomed to protect their properties” (Rashid and Husain, 1979: 128).

Thus there was a massive debate with, on the one hand, the establishment representing the colonial and imperialist view, attacking not only the waqfs but also the Indian extended family system and, on the other, Muslims and concerned British judges disturbed by this relentless attack on a social system and institutions which had constituted for centuries the back bone of Indian society. Moreover, this debate was by no means restricted to India and, as we have seen above, was fought equally fiercely all over the Muslim world from French North Africa, across the Ottoman Empire all the way to India. Everywhere colonialists or modernists were attacking these institutions and Muslims were fighting a loosing, often hopeless, rear guard action. In India, where a unique development occurred, Muslim reaction culminated in Muhammad Ali Jinnah introducing the Muslim Waqf Validating Act of 1911. The purpose of the Act was to eliminate the ground on which the High Courts and the Privy Council had refused to recognise family endowments, namely the contention that a valid waqf could only be established for charitable or pious purposes. The act affirmed that an endowment could also be established for the benefit of the family of the founder. Jinnah’s bill passed into law on 17 February 1913. This act made it lawful for a Muslim to create a waqf for the maintenance and support of his family, children or descendants. Where the founder is a Hanafi, he could do so also for his own maintenance or for the payments of his debts out of the rents and profits of the property dedicated provided that the ultimate benefit is reserved for the poor. The law also ruled that no such waqf should be deemed void merely because the benefits for the poor are postponed until after the extinction of the family of the founder. This act extends to the whole of India except the territories (Rashid and Husain, 1979: 27).

This was indeed a unique development credit for which should in retrospect be given to the British. Indeed, had it not been for the relatively more liberal British rule, the family endowments would have faced the same fate in India as those in Algeria. In Algeria the Muslims remained a totally colonised population with no political rights: In India the right of representation was extended to a limited number of “natives” who successfully used the legislative process to challenge the Privy Council. Thus, while the legislative process was used to dismantle family endowments in Algeria, in India, it was used to save them.

In short, while at one end of the Muslim world, French orientalists carried through a cynical and successful attack on family endowments, by denouncing the institution as an unethical and illegal evasion of the Islamic law of inheritance, i.e., exploiting an age old inconsistency embodied in Islamic jurisprudence with which Muslims had learnt to live with for centuries, at the other end, in India, Muslim politicians convinced the British government that these endowments were an ancient and universal practice approved by Islamic law (Powers, 1989: 555-565).

The debate about the family waqfs in India continued after the independence. Fyzee has argued that the family waqfs should never have been revalidated, and pointed with admiration, to Egypt (1952) and Syria (1949), which prohibited these endowments. Still another modernist, Latifi, has made the following argument:

“The social consequences of the (family waqfs) were devastating. It blocked any initiative by the Muslims in the direction of industry. It perpetuated a pathetic class of pensioners devoid of economic incentive who were bound in the long run to become a drag on the community. Distressed by these evils, modern jurists favour the repeal of the Act of 1913 restoring thereby the law as it stood declared by the Privy Council in 1894. It may be added that the decision is already and has ever been since 1894 the law of Muslims in Kenya. It is submitted that in view of the recent amendments introduced into the family waqfs in Egypt, Syria, Tunisia and Lebanon, the Muslims (of India) should review their attitude and adopt a more realistic approach (Latifi, 1978: 229-230).

Khalid Rashid is in favour of family waqfs but urges reform. For Rashid the real culprit is fragmentation; that succeeding generations obtain successively smaller fractions of the income, part of which is absorbed by the lawyers. He argues for the creation of a limited kind of family waqf created for a specific time, say, for two generations at the end of which the waqf may be reconstituted providing the beneficiaries agree to do so.

Paras Diwan is much more radical, and argues, “This is not a novel solution. Egypt reformed the family waqf in this manner in 1946 and since the experience was that the matter did not improve, it abolished the family waqf altogether in 1952” (Diwan, 1992: 179).

In short, the debate on the validity of family waqfs was by no means finalised with Jennah’s victory in India. The Indian modernists, still under the impact of British values, continue to argue about the merits of abolishing these institutions with total disregard to the fact that they are considered to be perfectly legal from Islamic perspective.

Large-scale loss of waqf lands is another post independence development in India. Many waqfs in India were endowed with agricultural lands. Many of these were cultivated by tenants on share cropping basis with the trustees acting as absentee landlords. After the independence, many states decided to abolish the zamindari and jagirdari systems and introduced land reforms. During these radical changes waqfs also lost their lands except what was personally cultivated by the trustees.

In many places the tenants became full proprietors on payment of prescribed amounts to the state governments. Only later was it realised that the waqfs were established in perpetuity and the charities would collapse if they were deprived of their source of income. Provisions were therefore made in various enactments to grant annuities to the waqfs.

Apparently these annuities were not paid to all the waqfs in a uniform manner. Those purely charitable/public waqfs received fairly adequate annuities but those that were partially so (i.e., family waqfs) did not receive sufficient annuities. Other purely family waqfs received only some compensation but no annuities whatsoever. Thus, such family waqfs faced simply a de facto liquidation.

The West Bengal Estate Acquisition Act of 1953 granted perpetual annuity equivalent to normal recurring annual earnings of the estate to all public, religious, or charitable waqfs. The partial ones, i.e., partly family, partly public, on the other hand, received no annuity but only ad hoc compensation in instalments. Since, 90% of the waqfs in West Bengal were of mixed character, almost the whole waqf institution in that state was on the verge of extinction. This was too much for the Central Government. It interfered and the State Government agreed to make an amendment to allow annuity for the portion reserved in mixed waqfs and trusts for charitable and religious purposes.

The Bihar Zamindari Abolition and Land reforms Act of 1950 granted perpetual annuity only to those waqfs dedicated exclusively to charitable purposes provided the salary or any allowance payable to any mutawalli did not exceed 15% of the net income dedicated (Rashid and Husain, 1979: 92). All of these developments indicate that British influence and the resulting discrimination against family waqfs is still a fact of life in India.

Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.