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STREAMLINING WAQF LAW TO ANSWER TO THE MODERN NEEDS OF THE COMMUNITY The author is a prominent Islamic scholar and general secretary of Islamic Fiqh Academy, India. His authentic masterpiece of writing is translated by M. Hifzur Rahman Qasmi, an alumnus of MMERC, Mumbai.

By Maulana Khalid Saifullah Rahmani



If Muslim Ummah wants to remain in the world as the ‘best Ummah’, it has to maintain its quality of providing benefits for humankind

etting criteria for the ‘best of mankind’, Muhammad (saws), the Messenger of Allah said: “The best of the people is the one who benefits (other) people.” (Kanzul Ummal: Hadith No. 44154) In spite of worship being among the pillars of Islam, the Prophet (saws) did not declare it as a criterion of being ‘best of mankind’. Instead, treating Allah’s creatures in a kind and polite manner has been acknowledged as a criterion for it. We have another Hadith of the Prophet (saws) reflecting the same fact: “The upper hand (that gives) is better than the lower one (that receives).” (Sahih Bukhari: The Book of Zakat: Hadith No. 1429) This way the Prophet (saws) has reminded the ‘best Ummah’ of its true position which requires it to be a ‘giver’ instead of being merely a ‘receiver’. It must be a nation benefiting the human community, not the one that only gets benefited by others and remains stretching its hands before other nations. This is because the things beneficial to others succeed in protecting their existence; while losing the quality of benefiting others results in the

losing the essence of existence itself. Allah Almighty says: “As for the scum, it goes to be thrown away, while that which benefits people remains on earth.” (Surah Ra’d: Verse: 17) Thus, if the Ummah wants to remain in the world as the ‘best Ummah’, it has to maintain its quality of providing benefits for humankind and prove it with practical delineation of it in action while dealing with others. Benevolence or benefaction can be in cash and kind. It can be with

money, words, deeds, or sincere words of advice that sets others on the path of success. It can be reflected in both; in terms of this world as well as the hereafter. Benefaction related to hereafter is to smoothen the relationship between the Almighty Creator and His creatures and lead the people steeped in darkness of apostasy to the right path. The Glorious Qur’an describes this responsibility of the Ummah as “enjoining what is right” and “forbidding what is wrong” (Aal-e-Imran: Verse: 110) The quality of benefaction also relates to the material needs of mankind. This is the reason why the Glorious Qur’an puts much emphasis on ‘spending’ and makes it a condition for piety: “Of what We have granted them, they spend.” (The Glorious Qur’an) Moreover, the rewards fetched by it have probably been rated much higher as compared to the rewards of every other good deed: “The example of those who spend in the way of Allah is just like a grain that produced seven ears, each ear having a hundred grains, and Allah multiples (the reward) for whom He wills. Allah is All-


In both, center and states, there are waqf ministries under which a waqf board works in each state.


service of mankind. In this regard, we find the statement of Allah Burhanuddin Tarabulusi saying that it was the Prophet (saws) himself who institutionalized waqf for the first time in Islam: “The first charitable waqf known in Islam is the waqf of seven gardens in Madinah made by the Prophet (saws) himself. It belonged to a Jew, named Mukhairiq. He was killed in the early days of the 32nd month after the migration of the

(A waqf Masid in Punjab) Muslims have since early days of Islam been accustomed of making waqfs for religious and welfare purposes.

Embracing, All-Knowing.” (AlBaqrah: Verse: 261) There could basically be two ways of spending: (1) Temporary spending to help someone meet his temporal needs; such as, feeding a hungry person, helping a patient get treatment or fulfilling the temporal need of the needy. Indeed, it brings huge rewards; and the Shari’ah has introduced the injunctions of zakat, sadaqatul fitr, kaffaraat (expiation) and other sadaqat wajiba and nafila (mandatory and optional charity) to serve this very purpose. (2) Doing something that can benefit either the whole human community or any particular group of it continuously for a long periods of time, or the tasks which serve any fundamental purpose of the Shari’a. Such ‘spending’ is referred to as ‘sadqa jaria’ in Hadith and as ‘waqf ’ in the terminology of Fiqh. Scholars are of the opinion that this particular form of ‘spending’ was first of all introduced by Islam. Endowing any piece of land for construction of a mosque or any other place of worship has been a customary practice since time immemorial, such as the land of the Holy Ka’ab and Baitul Muqdis. But it was only Islam which first introduced the waqf mainly for the

Prophet (saws). He used to fight with Muslims in the battle of Uhud. He said, ‘I bequeath my property to Muhammad, if I die. He will place it where Allah guides him.’ Thus he died on the day of Uhud,

while he was on Judaic faith. The Prophet (saws) said ‘Mukhairiq is the best of Jews’. He then took those seven gardens in his possession and endowed them (for the benefit of the Muslim community). (Al-Is’af Fi Ahkamil Awqaf: P. 9-10) Subsequent to that, we find the waqf of Umar (rz) which not only validates the waqf, but also sheds light on its basic principles. The details of this waqf in the words of Abdullah ibn Umar (ra) are as follows: “Umar acquired a piece of land in Khaybar. He said: ‘I have got a piece of land in Khaybar better than which I found never before. So what do you command me?’ The Prophet (saws) replied, ‘If you wish, you can keep the property with you and endow its productions, provided that the property is neither bought nor sold, nor gifted or inherited.’ Ibn Umar says, ‘Umar endowed it with the condition that it would neither be sold nor gifted or inherited; and its productions would be used for poor, kinsmen, emancipation of the slaves, guests and travelers. It was, however, not prohibited for its administrator to eat and feed from the same in a reasonable just manner without intending to be wealthy by its means.” (Sahih Bukhari: Hadith No. 2586) The same way, the story of Uthman Ghani (ra) buying a sweet water well (Rauma well) and endowing the same for Muslims at the Prophet’s (saws) urging is well known. (Tirmidhi: Hadith No. 3073) Uthman (ra) had referred to the same event during his siege. This is the reason why Muslims have since early days of


In India, the Muslim rulers established a great deal of waqfs for charitable purposes.

Islam been accustomed to making waqfs for religious and welfare purposes. They did not only establish waqfs for the sick, but also for those who take of them and even for livelihood of the birds. In the ancient age, there were no hotels and guest houses as they are nowadays. Waqfs were, therefore, made to build inns to provide the travelers with food and accommodation. Even in India, the Muslim rulers established a great deal of waqfs for charitable purposes. According to the estimation made by some people, Muslims will not have to beg for their education and employment, if only they are able to acquire their present waqf assets. They will surely meet all their needs through the waqf properties and will march ahead on the path of development as a self-financed nation. In India, Muslims are in minority; but there is a special waqf act here passed by the Parliament. In both, center and states, there are waqf ministries under which a waqf board works in each state. Now a central waqf council is also going to be set up. 37 EASTERN CRESCENT | MAY 2014

In India, Muslims are in minority; but there is a special waqf act here passed by the Parliament. In both, center and states, there are waqf ministries under which a waqf board works in each state

The history of waqf act in India is quite old. It was probably in 1923 that the British first passed ‘Musalmaan Waqf Act’. After independence, the Parliament again compiled the waqf law in 1954 which have been going through amendments from time to time in 1959, 1964 and 1969. Realizing the fact that the then waqf law was not playing an effective role in protecting the waqf assets, a fresh waqf bill was presented and passed in the parliament in 1984. But this law had a lot of defects. Thus, on the demand of Muslims, a yet another waqf act was passed in 1995. The All India Muslim Personal Law Board (AIMPLB) raised some objections on the waqf act 1995, because it had many weak points that caused hurdles to the waqf ’s proper implementation. After persistent efforts of the AIMPLB, the waqf bill 2010 was presented and passed by the Parliament in undue haste

without consulting the Muslims. This act excluded the properties endowed by the non-Muslim rulers for the welfare of Muslims from the waqf properties. Also Muslims were deprived of the right to lay a claim against encroachers on the waqf properties, used as waqf for a long period of time, but not registered as

per the norms. In this scenario, AIMPLB reviewed the act in detail and then proposed a draft law with some amendments. The government promised to accept all the amendments. In this very perspective, the waqf bill 2013 was presented in the Parliament and passed. But the law is still defective in some aspects of which three points hold paramount importance: 1) To vacate the properties of public purposes, there are special provisions in the law. A similar kind of law was promised by the government to be brought to tackle with the illegal encroachments on the waqf lands. But unfortunately, this point was neither included in the waqf act, nor any special bill was separately presented in this regard. 2) In the event of any conflict regarding the waqf properties, appeal is to be made to a tribunal. But no time period was determined for the tribunal to deliver the judgment. The AIMPLB had desired that the time period for the tribunal to issue the judgment should be confined to six months or not more than a year. If no time period is determined for settling the issue, the case can be put into cold storage and be prolonged for years, as is the current condition. 3) If the government acquires any waqf property, it will pay for it, as the law says, as per its market value. While the government has recently passed the ‘Land Acquisition Act’, according to which the compensation for the land acquired in the urban area would be twice the market value, and for the land acquired in the rural area would be four-times that of the market



to the problems faced by waqf in the Indian scenario. Now I would like to put forth some serious issues of the Muslims which can be tackled through the waqf assets. The first matter is that the condition of Muslim divorced women in India is quite a serious issue. Not to speak of marrying a divorced woman, even the marriage of virgin girls has become a difficult matter. Affected by the Hindu culture, such women are sometime considered cured ones. Even their guardians do not care for their marriage. If they have children from their ex-husbands, no one gets ready to accept their responsibility. According to the judgments

According to the judgments delivered by the Indian courts, the divorced women deserve maintenance from heir ex-husbands till their next marriage or death.

value. This should be applicable to the waqf lands as well. Apart from these points, the structure of the waqf board made by the government consists more of its nominated representatives as compared to the number of the representatives elected by Muslims themselves. The bitter experience Muslims have so far been having in this regard leads them to rightly consider this structure a danger for their waqf properties. It is, therefore, compulsory for the government to make such amendments in the present waqf act that can be up to the sincere wishes of Muslims. Islamic Fiqh Academy (IFA) India has since early days been giving due importance to the waqf issue. In the 10th seminar organized by IFA on 21-24 Jumada al-Thani, 1418 AH, corresponding to 24-27 October, 2001 CE in Mumbai, deliberations were made on the Shari’ah rulings on waqf and protection of the waqf purposes in the Indian scenario and 48 papers were presented in this seminar. The collection of these papers, consisting of nearly 900 pages, has been published along with an abridged abridged Arabic version of the same. Likewise, the 14th seminar of the academy held on 1-3 Jumada al-Ulaa, 1425 AH, corresponding to 20-22 June, 1989 EC in Hyderabad, discussed the waqf issue as to how the waqf property could be made profitable and how new waqfs could be established. In short, AIMPLB has fought for its protection on legal front on one hand; on the other, IFA has enforced it through its scholarly and thoughtful ideas, ultimately presenting the solutions

delivered by the Indian courts, the divorced women deserve maintenance from heir ex-husbands till their next marriage or death. Obviously such judgments are open interference in the Islamic Shari’ah. But the Muslim divorced women, due to utter helplessness, do not have any scope but to get benefited from such un-Islamic laws. In such conditions, we cannot save Muslims from such un-Islamic laws only through fatwas. We need to establish waqfs especially for such purposes and thereby make proper arrangement of pensions for them. Additionally, we should demand

from the government to arrange pensions for such women from the platform of the waqf boards. In case it does not have such means, the government should create it from the Minority Welfare Fund in a special way. Second serious matter is that many of the orphan boys and girls and helpless women fall victim to the Christian missionaries and Hindu communal organizations. Such children are kept in various churches and ashrams of the country. Thousands of such children were picked up from Kashmir and made to convert. Muslims have many pieces of waqf lands. There is a need to construct ‘aasra ghar’ for such helpless children that provides them with maintenance. It would not mean only helping some poor, but it is actually a step to protecting the faith of many Muslims. Though we need to get benefit from waqf assets for various purposes like religious and modern education and vocational courses, and at some places initiatives have already been taken in this regard, these two points are necessary to keep Muslims on Shari’ah and protect their faith. Though there is no provision of selling the waqf lands in the current waqf law, there is a scope to develop them. Likewise the new waqf law provides for the facility of lease for thirty long years, which was not provided in the previous laws. Getting benefit from such points, if the waqf properties can cater to these important needs of the Muslims, it would be laudable step. But right now there is no arrangement for that.

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