Throughout Mahatma Gandhi’s non-cooperation movement, numerous schools, colleges, and institutions were established on lands endowed as Waqf by Muslims.
Mohammad Alamullah | Clarion India
THE recent demolition of the centuries-old Akhonji Masjid in South Delhi’s historic Mehrauli locality and several other religious structures in the city by the Delhi Development Authority (DDA) has unsettled historians and cultural connoisseurs. Besides the recent demolitions in Mehrauli, the fate of historic and distinctive cultural treasures like the iconic Sunehri Masjid in Old Delhi’s Chandni Chowk and the Sunehri Bagh Masjid in Lutyens’ Delhi also seem to be on the DDA radar.
Questions are being raised whether these properties come under the purview of Waqf lands.
In this essay, Clarion India aims to shed light on the concept of Waqf and why it has drawn such attention.
Let us first understand what Waqf is and what is its history. How many Waqf boards are there across the country? Let’s delve deep into these questions.
Waqf traces its origins to the time of Prophet Muhammad (peace be upon him). He encouraged the act of giving property in charity in a manner that it couldn’t be sold, inherited, or given away; its proceeds would benefit the community. It is believed that Hadrat Umar (may Allah be pleased with him) was the first to dedicate valuable land as Waqf. From then on, it was established that Waqf could encompass any movable or immovable property donated in the name of Allah for religious or charitable purposes. These properties are intended for the welfare of society, with Allah being the sole owner of the estate.
With the advent of Islam in India, Muslims began establishing Waqf of their properties. However, it’s believed that it was during the Muslim era, particularly under Firoz Shah Tughlaq’s rule (1351 to 1388), that efforts were made to organize Waqf initiatives by the populace. It was during Firoz Shah Tughlaq’s reign that the practice of creating Waqfnamas (endowment deeds) flourished in India. Legend has it that Firoz Shah Tughlaq established a hospital during his reign and appointed physicians and doctors. Medicines were provided, and individuals dedicated their properties to support the hospital, ensuring free treatment for all. Additionally, the renowned Madrasa Firozshahi, considered one of the finest educational institutions of its time, was established in Delhi during this period. To support its operation, various Waqfs were established, earmarking their proceeds for the welfare and sustenance of the students enrolled in the Madrasa.
The Waqf system saw further refinement during the time of Sher Shah Suri (1529 to 1540). Legend has it that when villagers approached Sher Shah Suri for assistance to construct a mosque in their village, the king instead directed them to build it themselves, endowing a plot of land for the purpose. Villagers were tasked with safeguarding and overseeing the mosque and its Waqf properties, while meticulous records of all expenses and revenues were to be maintained. Historical accounts depict Sher Shah’s establishment of about 1,700 musafir khanas (rest houses) during his reign, which provided accommodation and sustenance to travelers from all corners of the country, all administered under the Waqf system.
Emperor Jalaluddin Akbar (1556 to 1605) also endeavoured to enhance the Waqf system, focusing particularly on the upkeep of Waqf properties. Luxurious buildings were constructed on these lands, further enriching the Waqf assets. Thus, over time, the Waqf system evolved and expanded across the country, continually striving for improvement and societal welfare.
During the British colonial era, Muslims continued to dedicate their lands to Waqf. While they fervently devoted themselves to the cause of India’s independence, they also committed their properties to the nation’s welfare and liberation from British rule. Throughout Mahatma Gandhi’s non-cooperation movement, numerous schools, colleges, and institutions were established on lands endowed as Waqf by Muslims. In addition to building mosques and madrasas to foster education, religious awareness, and training among the country’s youth, Muslims also established Waqfs whose proceeds supported freedom fighters. Even today, in many states, the offices of Congress party are situated on lands donated by Muslims. For instance, the Sadaqat Ashram in Patna stands on the land contributed by Maulana Mazharul Haq.
The history of Waqf law in India traces back to 1810. Initially, Waqf properties were overseen by qazis (judges) appointed by the government. However, as the condition of Waqfs deteriorated after the decline of the Mughal empire, laws were enacted to address the issue. In 1810, a law was passed for areas under Fort William of Calcutta, followed by a similar law in 1817 for areas under Fort St. George, Madras. In 1818, supervision of Waqf properties was entrusted to the Board of Revenue and Board of Commissioners. Subsequently, in 1863, all previous laws were repealed, and religious Waqfs were placed under the jurisdiction of mutawallis (administrators), while the government retained the management of remaining Waqf properties. This legislation established a distinction between religious Waqf and charitable Waqf. Furthermore, the Charitable Endowment Act of 1890 treated charitable Waqf properties as trusts, abolishing the concept of their perpetual maintenance.
The process of dismantling Waqf properties began in the British Raj. Not only were Waqf properties sold and transferred as personal assets, the British also implemented policies that led to their destruction and usurpation. In 1873, the Bombay High Court issued a ruling against ‘Waqf Alal Aulad’, a type of Waqf established for future generations. This decision was later upheld by the Privy Council in 1894. However, when a similar case came up in the Calcutta High Court, Justice Amir Ali ruled in favour of the Waqf Bill. His British colleagues, however, opposed his decision. It is believed that this opposition by British judges sparked agitation for the Waqf Bill in the country, leading to growing concerns among Muslims.
The Urdu book ‘Arrangement of Muslim Auqaf in Mamlikat-e-Hind’ by Dr. Shafaat Ahmed Khan, professor of history in Allahabad University, sheds light on this period. It reveals that a demand for better Waqf laws in India emerged as early as 1875 during the British rule when attempts were made to eliminate Waqf properties through legislation. Sir Syed Ahmed Khan established the ‘All India Educational Conference’ under the auspices of Waqf in 1875. During the conference’s annual meeting in 1887, a resolution concerning Waqf in India was presented. A similar resolution was put forth in 1903 as well. Subsequently, Waqf bills were introduced in various princely states and provinces.
In 1910, Muslims in India saw an opportunity for a change when Barrister Sir Syed Ali Imam assumed the role of law minister in the Government of India. He engaged in discussions about Waqf with his legal colleagues, leading to significant developments. Notably, Khan Bahadur Maulvi Muhammad Yusuf, a renowned lawyer from Calcutta, introduced a Waqf Bill in the Imperial Council. It’s important to note that at that time, there was no specific legislation in India pertaining to Waqf Alal Aulad.
On March 2, 1911, Sir Ali Imam presented the Waqf Bill, emphasising the importance of addressing Muslim sentiment on the matter. He expressed concern that failure to introduce the bill could lead to discontent among the Muslim community, citing misunderstandings about Islamic law regarding Waqf. Sir Ali Imam tirelessly advocated for the bill before the British government, eventually securing approval from the Imperial Council. Consequently, on March 7, 1913, the ‘Muslim Waqf Validating Act 1913’ was enacted. Since then, there have been continuous amendments to the Waqf Act, with the most recent amendment occurring in 2013. Currently, a petition challenging the constitutional validity of the Waqf Act is pending in the Supreme Court.
The court has asserted that the Waqf Act serves as a regulatory framework aimed at protecting Waqf properties. Repealing this law would only benefit encroachers. Furthermore, the court clarified that the Waqf Board is a legal entity and does not own the Waqf property. The next hearing for this case is scheduled for October 10.
There are a total of 32 state-level Waqf boards in India. Additionally, there exists a Central Waqf Council, an autonomous body responsible for the protection of Waqf properties across the country.
Regarding the distinction between Sunni and Shia Waqf boards, Section 13 (2) of the Waqf Act outlines the criteria for establishing separate boards. If the number of Shia Waqf properties in a state exceeds 15 percent of all Waqf properties in that state, or if the income generated from Shia Waqf properties surpasses 15 percent of the total income from all Waqf properties in that state, the state government has the authority to establish a separate Shia Waqf Board through notification in the Gazette.
Currently, separate Shia Waqf Boards exist in only two states in India: Bihar and Uttar Pradesh.
