Privy Council and the Muslim endowment (waqf)

Nurfadzilah Yahaya's picture

Our blogger is Zubair Abbasi who is an Assistant Professor at Lahore University of Management Sciences. Zubair Abbasi completed his doctorate from the Faculty of Law, Oxford University. The focus of his doctoral thesis was on the transplantation of English legal system in colonial India and the interaction between Islamic law (Fiqh) and English law in this process. He conducted a case study of the developments in Islamic waqf law under the British legal system by analysing the jurisprudence developed in the judgments of the Judicial Committee of the Privy Council and various Indian High Courts. His research revealed the crucial role played by Muslim lawyers, judges, ‘ulama’, and politicians in the formation of Anglo-Muhammadan Law (later called Muslim Personal Law). It showed how they simultaneously negotiated and collaborated with, and resisted the colonial administrators in the making and operation of the new Indian legal system.   He can be contacted at zubair.abbasi@lums.edu.pk

The Judicial Committee of the Privy Council and Islamic Endowments (Awqāf)

 

The Islamic endowment or trust known as waqf (plural awqāf) is an important Islamic institution. Historically, mosques, schools, hospitals, markets and inns were financed these endowments. As the highest court of appeal in the British Empire. the Judicial Committee of the Privy Council, more commonly known as Privy Council, decided about one hundred cases on waqf-related issues during a period stretching over more than a century. The first such case was decided in 1840 and the last in 1968. These cases came from all over Muslim populated territories of the British Empire such as India, Africa, Ceylon (Sri Lanka), Cyprus, Straits Settlements, Palestine, Burma and Mauritius. A large number of these cases originated in various provinces of India. There were about a dozen cases in which awqāf were established by Hindus in favour of their temples. This was due to the fact that under classical Islamic law a non-Muslim could also establish an Islamic endowment (waqf).

 

The Privy Council had to ensure that law was uniform in the Empire. Its decisions had binding precedential value just like the decisions of the erstwhile House of Lords (replaced by the UK Supreme Court) upon all lower courts. In this way, the Privy Council decisions contributed towards the development of several legal principles in Islamic endowment law throughout Empire. Based on these principles, the subject matter of Islamic endowments was extended to new forms of immovable property, such as shares of joint stock companies and securities issued by the state. Under classical Islamic endowment law, only land could be the valid subject matter of an endowment. In addition, the Privy Council decisions introduced new administrative strategies aimed at the better governance of Islamic endowments specifically guided by the principles of English trust law. For instance, in many cases the Privy Council approved drawing of management schemes for Islamic endowments.

 

A large number of cases decided by the Privy Council involved disputes regarding control of religious institutions such as mosques and shrines. In most of the cases parties were Muslims and were members of the same family. In some cases, the dispute involved parties belonging to different Muslim sects. In a few cases, the parties belonged to different religions. The Privy Council liberally construed ‘Muhammadan law’ (Shari’a or Islamic law construed by British authorities) in a case involving a dispute between different Muslim sects. [Fazl Karim v Maula Baksh [Bengal] [1891] UKPC 13 per Hobhouse]. In this case, the Privy Council refused to remove a prayer leader of a mosque for his adopting a different style of saying prayers according to the Ahle Hadith movement. This decision was endorsed by the first Muslim judge of an Indian High Court—Syed Mahmood—the son of the leading Muslim reformer, Sir Syed Ahmad Khan.

 

In the famous case of Masjid Sheed Ganj, the decision of the Privy Council resolved a dispute between Muslims and Sikhs in 1942. In this case, the claim of Muslims over an ancient mosque situated in Lahore, the provincial capital of the Punjab, was rejected on the ground of lapse of time. The mosque was occupied by Sikhs during their rule over the Punjab in the late eighteenth century. The presence of Sikh temple (Gurdwara) at that place to date reminds the lasting legacy of the Privy Council.

 

One of the most important decision on Islamic endowments was delivered by Lord Arthur Hobhouse in 1894 in the famous case of Abul Fata Mahomed Ishak v Russomoy Dhur Chowdury where the Privy Council held that an Islamic family endowment was invalid under Muhammadan law. Such an endowment could only be valid when substantial benefits were allocated for charitable purposes. The most salient feature of this decision was that it purported to be based on the construction of Islamic law. In fact, the main principle underlying this case was well-known English rule against perpetuities. This rule discourages the creation of perpetual interests in land because it stops land from market circulation and is thus economically inefficient. Interestingly, the decision in Abul Fata did not appear suddenly. Rather five years ago, Lord Hobhouse had questioned the validity of Islamic family endowments in the earlier case known as the Ahsanullah case for their incompatibility within the Islamic legal system because they were in conflict with the Islamic gifts law and inheritance law. The decision in Abul Fata, however, was not well received by the Muslims of India. Therefore, a statute was passed in 1913 in order to validate Islamic family endowments in India. However, the Privy Council refused to give this statute a retrospective effect. Therefore, another statute was passed in 1930 to give the 1913 Act retrospective effect.

 

The controversy generated by the Privy Council decision in the Abul Fata case showed that judges (called Councillors) were unable to understand indigenous laws and legal norms in India. Therefore, during the early twentieth century, three Indian judges Ameer Ali, Shadi Lal and D.F Mulla were appointed as Councillors. This ensured indigenous representation at the Privy Council. These Indian judges played an important role in bringing their knowledge and experience of the Indian legal system at the Privy Council. Previously, only retired British judges served as the Councillors.

 

As the highest court of appeal, the Privy Council had an advantage over the House of Lords. Unlike the latter, it was not bound by its own previous decisions. Therefore, in Ramanadan Chettiar v Vava Levvavi Marakayar decided in 1916, the Privy Council held that family members could benefit from the endowed property if that was the secondary and subsidiary object of a charitable Islamic endowment. In a case decided in 1951, however, the Privy Council refused to validate a Muslim family endowment by declaring that it was bound by its decision in the Abul Fata case in 1894.

 

In conclusion, the decisions of the Privy Council proved to be a mixed blessing for Islamic endowments in British India. They caused the development of new legal principles which responded to changing circumstances and ensured a better management of these endowments. At the same time, these decisions limited the use of Islamic family endowments and tried to create a distinction between public/private and religious/secular endowments. In the absence of a Federal Court in India until the very end of colonial rule, the role of the Privy Council in developing uniformed legal principles was vital. The fact that some of its decisions proved to be controversial does not overshadow its historical importance as the highest court of appeal in the British Empire.

 

Zubair Abbasi

 

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