Introduction
This article is about the informal legal order constituted within the world of a “Dargah” or a Suf shrine in the urban village of Mehrauli, in Southern Delhi, the capital city of India. Home to the United Nations Educational, Scientific and Cultural Organization (UNESCO) recognised world heritage monument—Qutb Minar, Mehrauli is one of the oldest continuous living parts of Delhi, where one can find monuments dating from the eleventh century A.D. to the eighteenth century, to this day.Footnote 1 I focus on the Dargah or shrine of Khwaja Qutbuddin Bakhtiyar “Kaki,” a revered Sufi saint who was born in Ush in the Central Asian region (Anjum, Reference Anjum2005) and lived in Mehrauli in the thirteenth century. This Dargah is built in the place he was buried in.Footnote 2
Affectionately called “Qutb Sahab,” he belongs to the Chishti Silsilah, the spiritual lineage of Sufism that originated in Persia. It is an unorthodox strand of IslamFootnote 3 in which mysticism guides the practices. Devotion to and communion with God is the main aim of Sufis (Hussain, Reference Hussain2008, p.10). Early practitioners of Sufism were known to lead a pious and ascetic life, and used to wear coarse woollen clothes, which was one of the symbols of their renunciation of worldly pleasures. In fact, the word “Sufi” is also derived from the word “Suf” or wool (Khanam, Reference Khanam2009).
The larger context of this Dargah’s location is constituted by the nature of tenure in Mehrauli, which is governed by multiple legalities, i.e. the operation of multiple forms of laws (Benjamin, Reference Benjamin2007). These stem from the peculiar classification of the housing settlement area of urban villages like Mehrauli. This area is known as “lal dora” land, the literal translation of which is a “red thread.” It is a colonial concept established in 1909 by the British while conducting land settlement in Delhi. They demarcated the housing settlement area of Delhi’s villages with a red line in the revenue maps, and exempted them from tax collection.
After independence, the administration of such villages underwent a change when they were declared as “urban village” and brought Delhi’s villages within the “urbanisable limits” of the city under section 507(a) of the Municipal Corporation of Delhi Act, 1957. This involved the acquisition of agricultural lands of those villages by the state for the “planned development of Delhi.” The administrative concept of lal dora land however was retained for the purpose of governance (Sheth, Reference Sheth2017). At the same time, keeping in line with the Indian state’s project of land redistribution in the 1950s, restrictions were imposed on transactions of property in such villages. For instance, sections 33 and 81 of the Delhi Land Reforms Act, 1954, placed a restriction on the landowner in terms of the amount of land s/he could sell. This however did not prevent people from engaging in property transactions, especially that of housing in urban villages. These transactions occurred through a combination of formal and informal documents resulting in a hybrid legal system. In the land administration registers, “lal dora” land was recorded under one number, whereas in reality over time these lands had multiple housing structures built upon them, transactions of which occurred through the hybrid system of documents. Leading to a situation in which the lack of clarity in ownership records became a characteristic aspect of such villages. This resulted in the formation of a legal administrative complex that became an integral part of land governance in urban villages (Chatterjee, Reference Chatterjee2015, Reference Chatterjee2020). Mehrauli joined the list of Delhi’s urban villages in 1962.Footnote 4
Within this context, I will look at the ways in which the informal and formal legal orders that exist in the Dargah interact with each other, with a specific focus on accessing property rights. The reason for focusing on the Dargah is that it presents a microcosm of the larger context in which land tenure exists in Mehrauli. The spaces of the Dargah are marked by mysticism, equality, and syncretism—where both formal and informal legal orders hold sway—all of which are a key part of Mehrauli’s urbanism too. The most interesting aspect about the Dargah’s hybrid system is its Waqf nature of property, which implies its ownership is vested with God, and only use rights can be exercised in it. I look at a long-term dispute about the use of spaces inside the Dargah using a framework of legal pluralism to view the interactions between the informal and formal legal orders and the implications it holds for accessing property rights in urban India. I look at two different instances of the dispute to lay out the ways in which issues relating to rights and control over the Dargah as a Waqf property are claimed/exercised.
I will advance two core arguments in this article: one is about the redistributive role played by the informal and formal legal systems, the other is about the relationship between law and society in urban India. My first argument is that interactions between formal and informal legal orders are a productive space with a potential of having an equaliser effect in society. I will show this occurs when individuals belonging to an economically weaker class are able to tilt the balance of power in their favour by successfully making claims upon the Dargah resources through an invocation of different legal orders. This is not to say that every claim they make bears fruit (Raman, Reference Raman2015). Rather, the presence of both legal and informal orders opens multiple avenues which must be explored on a constant basis.
The second argument I will make is that there exists a dialectical relationship between the formal and informal legal orders. It is not just the formal law which shapes society, but also vice versa. Like most cities of the Global South, Delhi too is dotted with informal settlements. In fact, 75% of the city is believed to be “unplanned”—a result of construction activities undertaken by non-state groups like builders or individuals (Bhan, Reference Bhan2013). These activities have filled a gap in availability of affordable housing to an ever-growing metro city. The growth of this informality has been conceptualised as being a result of the formal planning process itself (Roy, Reference Roy2011). This conceptualisation has three implications: First, the state exercises control over people through the use of formal law and by selectively choosing which informalities to tolerate and which ones to act against. Second, the informal is subordinate to the formal, as it is the formal law which produces the informal. Third, there exists a continuum between the formal and informal, as opposed to a strict binary. While I agree with the first implication, I will add to the second implication by arguing that the interactions that occur on the continuum of formal and informal shape the relationship between the two, such that on the ground it becomes difficult to say whether the formal is indeed superior to the informal.
Data for this article was collected between 2016 and 2018 as part of the field work I did for my doctoral research in which I interviewed a range of actors including long-term residents of Mehrauli, the Dargah officials, residents who lived inside the Dargah complex, lawyers, notary officers, state officials involved in Mehrauli’s administration, architects, and urban planners.
This article is organised in five sections. The first section presents an overview of literature on the various ways in which property rights in urban areas of India have been examined, particularly in the context of politics of informal tenure. I use this section to elaborate on “multiple legalities” that operates in the governance of property in urban villages. Through this section, I show the need for developing a deeper understanding of property rights in contemporary urban India, especially within the context of formal and informal rules that play a role in governing urban India. In the second section, I present the analytical framework and methods used in this article. Viewing property through an anthropological lens, I use the analytical frame of semi-autonomous social field (SASF) to look at the ways in which formal and informal rules regulate property rights in the Dargah. The presence of robust formal and informal rules leads to the operation of multiple legalities in spaces like Mehrauli. Within this frame, I focus on “trouble cases” or disputes as a method of study for analysing the ways in which different rules are used in making claims of property by different groups, and the dynamic ways in which property comes to be accessed in spaces where such social fields operate. In the third section, I provide a description of the SASF as it operates in the Dargah. I lay out the formal and informal rules that shape the use of spaces within the Dargah in two sub parts within this section. In the fourth section, I present the long-term disputes to home in on the interactions between formal and informal rules. In the fifth or final section of the article, I examine the generative ground that the Dargah’s SASF provides for redistribution. I also elaborate on the dialectical relationship between formal and informal legal orders of Mehrauli in this section and draw comparisons with similar SASFs that operate in other parts of the world for adding a deeper perspective to the findings of this article.
1. “Occupancy Urbanism” and property in existing literature on urban India
In contemporary urban India, like in most cities, one of the most tangible things in which property rights are exercised is housing. The settlement in which an individual lives is a marker of the ways in which that person would be deemed to be living in a “rich” or “poor” colony. In several cities, real estate projects drive processes of wealth accumulation accompanied by drastic dispossession of the people whose lands are acquired by the state for facilitating those development projects (Soni, Reference Soni, Dupont, Tarlo and Vidal2000). In Delhi and its suburban areas, which consist of the neighbouring cities of Gurgaon and Noida, gated high rises and slums with insufficient access to basic services like water and electricity lie next to each other, reflecting multiple forms of Indian urbanism (Srivastava, Reference Srivastava2015). Scholarly interest in regimes of property in urban India increased after the implementation of neoliberal policies of development in the country (De Neve and Donner, Reference De Neve and Donner2015). Investigations into the role played by state institutions in shaping urban development have shown that both the executive and judiciary have helped in the implementation of “middle class” aesthetics in Delhi’s housing (Ghertner, Reference Ghertner2008; Bhuwania, Reference Bhuwania2017). The state has also facilitated the development of a real estate-driven rentier economy through the establishment of various real estate projects (Walton and Gandhi, Reference Walton and Gandhi2012). The marginalised sections of the city’s population exercise their right to property in land and water through a consolidation of their voting powers, facilitated by the “pradhan” or the village head (Webb, Reference Webb2013). The nature of citizenship in cities is thus fragmented, especially when it comes to accessing basic state services (Srivastava, Reference Srivastava2009; Jayal, Reference Jayal2013). However, an area that remains underexplored is the ways in which social relations are embedded in the relations of property, even though they play an equally crucial role in shaping urban spaces. These relations play a distinct role in localised contexts through the processes of negotiation that occur in the everyday lives of the people (Chatterjee, Reference Chatterjee2004). These negotiations in turn constantly change the ways in which property is understood. An analysis of the ways in which social relations are embedded in property helps in deepening our understanding of one of the basic elements of contemporary social life in urban India. It also helps in questioning the dominant conceptualisations of property that are focused heavily on the idea of private ownership, thus opening the window for a creative revival and rethinking of other forms in which property may be organised.
Within the context of urban villages of Delhi, social relations in property regimes have been investigated extensively by Solomon Benjamin. Focusing on the politics of urban villages of Delhi and Bangalore, Benjamin developed the concept of “occupancy urbanism.” Detailing the everyday politics that occurs in the local administration of an urban village in East Delhi in this work, he has shown that the unplanned nature of such areas permeates its dynamics with legality and politics (Benjamin, Reference Benjamin2005). He identifies these spaces as sites of a quiet politics that manifests in the operation of multiple tenures that exist there. A key point he makes is that land should be viewed in terms of multiple tenures which represent not just residence but other forms of uses that one can find in mixed-use areas of Delhi (Benjamin, Reference Benjamin2005, p.253). He builds on this work by combining it with experiences from Bangalore to advance the concept of “occupancy urbanism” (Benjamin, Reference Benjamin2007, Reference Benjamin2008), which he defines as “a conceptual frame for viewing city dynamics in an open-ended way, unencumbered by the anxiety of a grand narrative” (Benjamin, Reference Benjamin2007). The central argument of both these works is that “occupancy urbanism” enables the subversion of the forces of global capitalism through the operation of multiple forms of tenures. Focusing on the politics and economics of land held in multiple forms of tenures, Benjamin identifies ten characteristic features of occupancy urbanism. Foremost among these is that a city’s development is incremental in nature, shaped by the actions of multiple agents. This kind of urbanism exists in areas that are characterised by multiple forms of de facto tenures and where land forms the core basis of the economy, and adds an element of dynamism to the intensive economic activities that take place there and combine with the everyday politics in the local administration of each such urban village. The open-ended nature of this politics allows it to move across scales of governance. At the local level, it manifests in the form of administrative orders that are issued from time to time as a result of negotiations between different agents. These negotiations are aimed at an incremental tweaking of the status of land tenures in the area, adding to their resilience by making successful claims of property rights on land in the city. These dynamics enable the urban poor to capture a section of the real estate surpluses in the lands of such areas. This happens due to a combination of the poor groups’ investment in those lands and engagement in a specific kind of politics aimed at regularising their informal tenures. Different kinds of laws play a key role in these negotiations, leading to the emergence of a plurality of laws or multiple legalities.
For this article, the most relevant aspect of occupancy urbanism is the implications it holds for the idea of property. Benjamin argues that occupancy urbanism “disfigures the concept of ‘property’ in real estate.” Arguing that it has a similar effect in law, Benjamin adds, “an urbanism that is extensive, embedded in local society economy and politics, and built around de facto and multiple tenures, promotes a plurality of law” (Benjamin, Reference Benjamin2007, p.556). By way of extending this point, this article focuses on one aspect of those changes of property in the context of formal and informal legal orders.
2. Property rights, legal pluralism, and semi-autonomous social fields
Viewing property through an anthropological approach, I examine the dynamic ways in which property is accessed in Mehrauli’s Dargah. I view property as a relational concept to take into account the context of the rights that individuals or groups possess with respect to all other individuals vis-à-vis a thing, which forms the object of property. Taking a relational view of property helps with a few things. First, it allows an acknowledgement of the constantly changing nature of the political, economic, and social functions of property (Hann, Reference Hann2007). Second, it helps foreground the complex relations that actually govern property, paving the way for going beyond the dominant understandings of property which tend to prioritise the concept of private ownership as the most “efficient” way for organising property (Demsetz,Reference Demsetz1967). This is important because in places like urban villages of Mehrauli, arrangements of property are often not as clearly set out as proponents of private ownership imagine them to be. Rather, property is shaped and reshaped (Morris, Reference Morris2022) constantly through the social relations that are embedded in the relations that different individuals have with each other vis-à-vis an object of property. A relational view thus helps in teasing out the varying nature of property relations and makes sense of arrangements of property that are a creative combination of market, state, and common ownership (Hann, Reference Hann2007).
Given the lack of clarity in ownership records and the operation of multiple legalities, lines of property are drawn and redrawn through a language that has to be understood by the claimant and accepted by the audience against whom those claims are asserted. This language is spoken through the deployment/invocation of formal and informal rules that come to comprise the SASF of Mehrauli. This need for communicating one’s claims means that individuals have to learn how to communicate their property rights. This involves questions of how to frame, negotiate, and assert their rights to the world at large, including political actors (Rose, Reference Rose1994). Based on the ways in which different groups understand property rights, members of those groups indulge in specific performances of property (Blomley, Reference Blomley2013). These performances involve actions that are considered to be both citational and reiterative in nature. What this means is that property relations are constantly shaped through a certain set of existing actions, and through the repetition of those actions by new actors (Blomley, Reference Blomley2013, p.23). In other words, both long-term residents of Mehrauli who indulge in these performances, and its new residents have to learn the language of these performances by imbibing its culture. This process shapes the way in which property is accessed and the ways in which individuals and groups relate to the spaces of Mehrauli.
2.1. Semi-autonomous fields and legal pluralism
In Mehrauli, performances of property rights occur by the use of formal and informal rules, which operate within the framework of legal pluralism where multiple forms and sources of law exist in any given context (Tamannah, Reference Tamannah2021), and formal state law is not the only legitimate source of property rights. The concept of lal dora land that governs property in urban villages like Mehrauli, leads to a situation where arrangements of property are a combination of different forms of ownership (Honore, Reference Honore and Guest1961). The social field of property in Mehrauli is thus constituted by more than one legal order (Griffiths, Reference Griffiths1986) created through different social contexts. These contexts are constituted by different parts of Mehrauli which include places like its “designer lane” (the area which is marked by fashion clothing stores, restaurants, and curated spaces for organising music performances), various residential colonies, and the office of the local revenue administration, which is seated in Mehrauli. Each of these areas has legal orders that are a set of informal rules that emerge for and from the way spaces within them are used. At the same time, these spaces are also shaped by formal rules that stem from the multiple laws and the hybrid legal administrative complex that regulates tenure in Mehrauli.
The common thread that runs through these legal orders is that in one way or the other, they play a role in regulating the behaviour of individuals and groups who are a part of those fields. Both individually and together, they operate in Mehrauli in what has been described conceptually as SASF (Moore, Reference Moore1973).
The Dargah’s social field, which forms the focus of this article, is a part of Mehrauli’s larger SASF. The “semi-autonomous” aspect of such social fields lies in the fact that they are not completely isolated from other social fields or systems, including that of formal state law. Members of one SASF are not bound by hard boundaries, rather it is the processes that shape the functioning of an SASF that ties them to it. It also means that rules formulated in an SASF possess an element of dynamism, endowing them with the capacity to evolve with changing times. Within an SASF, lines between formal and informal laws become blurred through the interactions that occur between them. The way such laws interact can at times be consistent with each other, while in some instances they can contradict each other.
Within the larger frame of SASF, I use disputes to analyse the ways in which law embedded in such orders structures property relations. This requires a focus on “trouble” cases or those disputes which by their very nature are different from the routine cases, and within which multiple forces of tension that play out in society can be seen clearly. Such cases usually pose significant challenges to existing societal and legal institutions and help gain insights into the ways in which deviations from established norms of society are caused and dealt with in a society (Nader, Reference Nader1965). It also helps address questions like whether the resolution of such conflicts causes any cultural changes, and the impact any such change brings with it. Examining long-term disputes and how they are resolved provides a tangible way for grasping the explicit and latent functions performed by different legal orders in any given context. It also helps develop an understanding of how law emerges in changing situations (Llewellyn and Hoebel, Reference Llewellyn and Hoebel1941). Law, in this context is understood as rules that govern behaviour in a society, and which can exist both under formal state and informal legal orders. These rules essentially act as tools of mediation for resolving disputes, when they arise, or in preventing disputes from happening. The legitimacy of these rules however is guided largely by the acceptance of those rules by the people and their ability to access formal legal systems.
3. Semi-autonomous social field of Qutbuddin Bakhtiyar Kaki’s Dargah
There are two things that characterise the SASF of the Dargah. One is the syncretism associated with Qutb Sahab, a Sufi saint. The other is the nature of property that the Dargah constitutes. Together, they form the source of rules that regulate the everyday use of spaces and resources of the Dargah. Informal rules of the Dargah emerged along with its religious journey, while formal rules and laws that govern the Dargah as a property emerged much later. Individuals and groups from different economic classes use formal and informal rules to claim the Dargah’s spaces. This gives them a means of engaging in a tug of war for asserting rights over the Dargah and the opportunity to shift the scales of power between them. The direction in which that shift may occur is however not fixed, and remains as dynamic as the SASF of Mehrauli.
3.1. Waqf and informal laws of a Sufi Dargah
As mentioned earlier, the Dargah is designated as a “Waqf” property. The word “Waqf” has Arabic roots and is derived from the verb “Waqafa,” which means “to hold” (Hussain, Reference Hussain2008), “detain,” “stop,” or “restrain” (Hussain, Reference Hussain2021). The concept of Waqf in Islam provides a way for individuals to donate their property for charitable and religious purposes (Rasool, Reference Rasool2017). Though the term “Waqf” is not mentioned in Quran anywhere, its doctrines are derived from various chapters of Quran (Rasool, Reference Rasool2017, p.2) Any individual who wishes to donate their property for such socio-economic purposes dedicates it to God. It is believed that such dedications please God and help an individual in their spiritual journey. The individual who dedicates his/her property as “Waqf” is known as a “waqif.” The moment a property is declared a “Waqf” property, the waqif loses his/her title over the property and its ownership becomes vested with God (Khan, Reference Khan2002). The property becomes permanently inalienable and the rights of the original owner over it cease to exist (Hussain, Reference Hussain2008, p.2). This transfer occurs through a Waqf deed which details the purposes for which the property will be used. Generally, such donations provide for the property to be used for the benefit of the larger community. A property once declared a Waqf, continues to remain so in perpetuity. In such properties, use rights trump exchange rights (Hussain, Reference Hussain2008, p.2). Use rights within Qutb Sahab’s Dargah are shaped by a combination of three elements: faith in the spiritual powers of the saint, informal rules meant for regulating access to different spaces of the Dargah, and formal laws made by the state for governing such institutions.
Qutb Sahab was the disciple of Khwaja Moinuddin ChishtiFootnote 5 —the person who introduced the Chishti Silsilah in India in the twelfth century A.D. The Chishti Silsilah is the oldest, most popular and largest Sufi Silsilah in India (Anjum, Reference Anjum2005). The popularity of this Silsilah grew because of its inclusive nature—individuals of all faiths and classes have always been welcomed to its folds. Sufi saints like Qutb Sahab and Khwaja Moinuddin Chishti used Hindustani and Hindavi language in their poetry, which helped them communicate freely with the people. Saints belonging to this tradition are known for living in simple communal dwellings called “Khanqahs” (Anjum, Reference Anjum2005). The Khanqah of Qutb Sahab was an inclusive space marked by equality where ordinary people could feel close to God. Over time, Sufi folk literature acted as a crucial bridge between Hindus and Muslims in India (Anjum, Reference Anjum2005), a country where fault lines between these two religions have been known to occur both in the past and present times.Footnote 6 It is in fact one of the sites that was chosen by Jawaharlal Nehru, the first Prime Minister of India, to celebrate India’s secularism. The celebration of the festival of Phool Walon Ki Sair (the literal translation of which is a procession for offering flowers) was restarted in 1961–62 by Nehru to rebuild bridges between Hindus and Muslims, following the partition of India (Safvi, Reference Safvi2015). This is a festival which was earlier celebrated by Mughal Kings in Mehrauli, particularly the last Mughal King, Bahadur Shah Zafar, who was quite attached to Mehrauli and the Qutb Sahab’s Dargah. So deep was his attachment to Qutb Sahab that he constructed his abode, which is today called Zafar Mahal, in Mehrauli next to the Dargah. He had also expressed a wish to be buried in the compound next to the Dargah. He, however, could not be buried there because the British imprisoned him in Rangoon after the Revolt of 1857 took place. The mutineers who drove the Revolt of 1857 against the British rulers coalesced around the figure of Bahadur Shah Zafar as the legitimate ruler of India. The mutineers consisted of both Hindus and Muslims, and together they chose a Muslim leader, Zafar as the rightful leader of India, and in whose name they carried out the revolt against the British rule. In terms of historical significance, Mehrauli as a site is therefore a crucial symbol of both—Hindu–Muslim unity, and the seat from which the first substantial challenge to British colonial rule in India was made. The choice of Mehrauli to restart the celebration of a syncretic festival was therefore significant for more than one reason. Like in Zafar’s times when a huge procession would be taken out during the celebration of this festival (Dalrymple, Reference Dalrymple2006; Lewis and Lewis, Reference Lewis and Lewis2002), in the renewed version of this syncretic festival, flowers are exchanged between two oldest religious places of the village—Qutb Sahab’s Dargah and the ancient Hindu goddess Yog Maya’s temple as a symbol of peace and love between Hindus and Muslims.
Informal rules that regulate the use of spaces inside the Dargah stem from the religious aspect of the site, the practical need for regulating Dargah visitors’ behaviour, and its Waqf nature. For instance, devotees dutifully deposit their shoes in a footwear storing facility that is provided by the shops that sell different kinds of wares to Dargah visitors before entering the Dargah as a mark of respect to the saint. Some devotees buy flowers and tiny pieces of colourful threads for offering to the saint. Women, in particular, can be seen tying these threads on a wall that faces the tomb of Qutb Sahab’s lies because they are not allowed entry to that area. Before offering prayers in the form of a “namaz” (prayers), devotees perform wazu rituals (the practice of washing face, hands, and feet before offering prayers to God) at the rear end of the Dargah, where its “wazu khana” or the space for performing wazu is located. What is interesting is that devotees engaging in these rituals seem to be performing the act both individually and as a collective, united by their love for the Sufi saint. Another example is that of the rules which govern the use of a space called “Qutbi Chowk Dhuna Fukra” located on the pathway that leads up to the shrine. Spread over 40 yards, it is an “open room” with no doors constraining entry to it. This space is used by a diverse set of people including visitors and other residents of the Dargah. One side of the room is usually occupied by individuals who are associated with the Dargah management authority. The other side is used as a makeshift community kitchen for serving food to people every afternoon, but the food is prepared elsewhere. Further along the pathway towards the shrine is the “Majlis” or Assembly area where every Thursday Qawwalis (which means “to speak” in a musical way; the word derives its roots from the Arabic term “qaul” which means “to speak”) are performed. Qawwali refers to the practice of songs that are sung as a form of worship. This is a practice in which people across religions take part.
The many activities inside the Dargah, from engaging in wuzu rituals, offering prayers, to attending the Thursday Qawwalis, partaking the food served at the community kitchen, or participating in the festival of Phool Walon Ki Sair, occur like clockwork. Every individual who resides in the Dargah, or even Mehrauli, is aware of when and where which activity will occur. The rules that are regulating these activities are informal in nature and have evolved over time to operate within the Dargah. Formulated by both the people who manage the Dargah, and the people who reside inside it, they are accepted widely by one and all.
The space which is known as the “Dhuna.” It is this space which formed a point of contention in the dispute between the residents who live inside the Dargah complex and the management authorities of the Dargah. Photograph by author.
3.2. Formal state laws shaping the Dargah’s governance
Though the concept of Waqf is centuries old, in terms of tracing the evolution of the framework of its governance, this article restricts its focus to the colonial and postcolonial period. Prior to 1863, the British colonial state in India adopted a policy of minimal interference with personal laws of Hindus and Muslims. In the context of Waqf properties, it took upon only a supervisory role. This approach however was contradictory to the larger project of land commodification that the British rulers were implementing in India. Gradually, there was a shift in this approach when the British colonial government gave up its role as a superintendent of all public religious endowments, including Waqf properties, with the passage of the Religious Endowment Act in 1863. These endowments were instead placed under direct management of respective communities. The net effect of this Act was that “religious endowments were now subject to lawsuits raised by private parties, and potential seizure for debt claims, whereas previously they had remained insulated from economic forces by the protected grasp of the state” (Beverly, Reference Beverly2011). During the same period, the colonial state implemented changes in the way judiciary functioned in India. Initially, British judges relied on the opinions of Hindu and Muslim religious experts (Pandits and Qazis), but from the 1864 onwards, these positions were abolished with the passing of the Qazi Act; and interpretation of personal law was carried out by English judges who did not understand the various nuances of personal law. In the context of Waqf properties, one major implication of these changes was the invalidation of family Waqfs by the courts, leading to the emergence of strong opposition from Muslim elite classes. Family Waqfs are a concept that was used by Muslim families to ensure their properties stayed within the family by declaring them as “family Waqf” or “Waqf-al-ul-Aulad,” whose purpose was to serve the benefit of the family. Muslim landowning classes of that time challenged the colonial state for protecting family Waqfs. Eventually, the British administration recognised family Waqfs through laws like the Mussalman Waqf Validating Act VI of 1913, Mussalman Waqf Act, 1923, and Mussalman Waqf Validating Act of 1930.
After India’s independence and partition, several Waqf properties were left vacant due to the migration of Muslims (including managers of Waqf properties) to the newly created state of Pakistan. This resulted in Waqf properties becoming occupied illegally. In the aftermath of the partition, Muslims who stayed back in India had to deal with the challenge of being blamed for the partition and bear the burden of proving their loyalty to the country. At that time, the focus of the Muslim elites was on educational development and protection of cultural identity of Muslims in India. This involved a strict adherence to legal-constitutional discourse of rights/secularism (Ahmed, Reference Ahmed2014). They organised themselves into groups for protecting Waqf properties and raised their concerns with the then government of India. The Waqf Act of 1954 was a result of these efforts. This Act provided a central framework for the protection and management of Waqf properties in India.
For the next three decades of this law’s existence, this Act was amended multiple times and finally replaced by the Waqf Act, 1995, which was further amended in 2013. Currently, Waqf properties in India are governed by these two Acts, including Qutb Sahab’s Dargah. Citing Islam, the law defines Waqf as any property that is dedicated permanently for activities that are considered “pious, religious or charitable.”Footnote 7 The person who is entrusted with administering a Waqf property is called the “mutawalli” (Hussain, Reference Hussain2008). This term derives its roots from the Arabic word, “wila,” the literal meaning of which is “trust.” The term “wali” refers to a trusted friend. When combined together like in the term “mutawalli,” it refers to the friend who has been trusted with the role of managing a Waqf (Hussain, Reference Hussain2021).
This Act provides a structure of administration through which the state plays a role in the management of such properties. The point where it diverges from the Islamic concept of Waqf is that it provides for certain discretionary powers to the Waqf Board which permit it to enter into transactions of Waqf properties, so long as the main objective for which a Waqf is created is not contradicted.Footnote 8 It also provides for the protection of family Waqfs or “Waqf-al-ul-aulad.”
The Waqf Act, 2013 provides for a Central Waqf Council that functions at the Union Ministry level (India’s Federal government). This council is a part of the Ministry of Minority Affairs of the Government of India and oversees the work of the State Waqf Boards responsible for managing the affairs of Waqf properties in different states. Before 2013, the Central Waqf Council’s functions were limited. But the amendment of 2013 expanded the powers of the Council, allowing them to play a greater role in the functioning of State Waqf Boards. The Central Waqf Council is responsible for monitoring financial management of State Waqf Boards by ensuring their compliance with proper reporting. Today, there are a total of 30 State Waqf Boards across the country, and Waqf Boards are the third largest institutional landholder after Defence and Railways (Rahman, Reference Rahman2019). The number of registered Waqf properties in India has been estimated to be more than 4.9 lakhs spread over 6 lakh acres of land (Rasool, Reference Rasool2017). The total value of Waqf properties lies in the range of ₹1.2 lakh to 3.6 lakh crores (Rahman, Reference Rahman2019).
The responsibility of managing all affairs of a Waqf property is vested with the Waqf Board of the state in which the property is located. The Waqf Board has the powers to constitute a managing committee and delegate powers required for managing the premises of a Waqf property.Footnote 9 The board also appoints the “mutawalli” as the official who is responsible for the maintenance of a Waqf property. In the absence of a mutawalli, Footnote 10 the board has the powers to appoint a “receiver” for performing the functions that are expected of a mutawalli. A mutawalli can be any person who has been appointed by the Waqf Board for the purpose, this could even include “Sajjad-nashin” (Hussain, Reference Hussain2021). In a Sufi shrine, it is the birth descendants of the Sufi saint who are known as Sajjad-nashins. The formal laws that regulate Waqf properties like Qutb Sahab’s Dargah, can therefore be seen as a law that combines elements of Islamic concepts with modern law. It should also be kept in mind that Waqf properties in India have served not just to protect the interests of Muslim landed elites, despite them playing a major role in seeking the protection of waqf properties to defend their class interests. There are also multiple instances where Waqf properties have actually served the interests of poor people, like the Mewat Engineering College in the northern state of Haryana which, as a government university, offers subsidised educational services to not only people of Muslim communities, but to everyone.
4. Dispute inside the Dargah
I will focus on two specific instances of a dispute inside the Dargah that is centred around the issue of exercising rights/control over the Dargah spaces. The first instance is about the management of the Dargah, and the other is about sharing water. In both instances, the adversaries are constituted by similar groups on either side, with one side consisting of the families who reside inside the Dargah complex, and the other side consisting of those individuals who are associated with the management of the Dargah. Both also involve interactions within the Dargah’s SASF constituted by the informal laws and Waqf nature of the property, and the formal laws in place for the governance of Dargah properties.
There are 15 families that live inside the Dargah—they belong to an economically weaker class and consist of both Hindus and Muslims. For example, the nephew of one of the house owners works as a driver or chauffeur. Another owner works as a priest. A third owner runs one of the small shops outside the Dargah. Most of the residents do not possess higher education degree qualifications. On the other hand is the group that consists of individuals who are involved in the management of the Dargah. Members of this group are economically well off and tend to rub shoulders with state officials of the Delhi government, especially during the celebration of the festival of Phool Walon Ki Sair. Consider for instance the room in which they conduct their official meetings inside the Dargah. It is an air-conditioned room, furnished with a 40-inch plasma television, a personal computer, and pillars with designs inscribed on them. This room is often kept locked indicating that entry to it is reserved for the privileged few.
4.1. Instance 1 of the dispute: Who manages the Dargah?
The first instance is over the question of who has a greater right regarding the management of the Dargah. The roots of this issue lie in the complicated succession arrangement of Sufi Dargahs that belong to the Chishti order. The families who live inside the Dargah complex assert they have a greater right to administer the Dargah. They draw their claims on the basis of their relations to the descendants of the Sajjad-Nashin (see below for detailed description). While those who are associated with the management of the Dargah draw their claims simply on the basis of their links to the formal state order that is responsible for the governance of the Dargah. This need for having a say over the management of the Dargah arises from the fact that the management committee is responsible for the financial administration of the Dargah, among other things.
In the Chishti order, the Sufi saint chooses his successor from amongst his spiritual disciples as opposed to bloodline descendants (Sahota, Reference Sahota2015). The birth descendants of the Sufi saint are known by the title of “Sajjad-Nasheen.” The literal meaning of this term is “the receiver of prayer mat, throne or seat” (Sahota, Reference Sahota2015, p. 189). Unlike the general Sufi tradition, in the Chishti order, the Sajjad-Nasheen receives the tomb compound in inheritance, while the prayer mat goes to the spiritual successor of the saint (Sahota, Reference Sahota2015, p. 189). This makes the Sajjad-Nasheens custodians of the shrine (Sahota, Reference Sahota2015, p. 189), while the spiritual successor of the saint is a separate individual. Another set of potential claimants consists of the descendants of the community of servitors of the saint who designate themselves the “Peerzadas” (Sahota, Reference Sahota2015, p. 195). The servitors are the individuals who take care of the saint while he is alive. Descendants of these individuals too can make claims over the Dargah on the basis of their lineage. The presence of these two types of lineal descendants constitutes a ripe ground for a clash over the question of who is the rightful successor of the Dargah and thus possesses a greater right over the management of the Dargah. In the case of Qutb Sahab’s Dargah, the spiritual successor of the saint was Khwaja Fariuddin Masuud Ganj Shakkar, more commonly known as Baba Farid (Safvi, Reference Safvi2015). He is not known to have any direct birth descendants.Footnote 11
Multiple claims over the Dargah’s management began to be laid in 1973 when a complaint was filed by the residents of the Dargah in the Delhi High Court regarding the mismanagement of funds at the Dargah. The primary complainant was late Syed Fahimuddin Qutbi, who claimed to be a lineal descendant of the community of servitors or Peerzadas of Qutb Sahab. This group asserted they have a greater authority for managing the affairs of the Dargah and should be made members of the managing committee of the Dargah, or if that is not possible, then the existing committee should be disbanded. This suit was filed by five plaintiffs and had eight defendants. At that time, the Dargah did not have a mutawalli. An immediate result of this complaint was that a receiver was appointed by the Waqf Board as the person in charge of the maintenance of the Dargah in accordance of the formal state law (section 86 of the Waqf Act, 1995, provides for the appointment of “receiver” in some circumstances). An interesting aspect about this dispute is that the families sought help from the formal state law system to solidify a right that draws its basis from the spiritual beliefs that operate within the Dargah. There was no other progress in the case—the trial had not begun as of 2018 and many of the original plaintiffs and defendants had already passed away.Footnote 12 The families made a conscious choice of filing the complaint in the court through the Peerzada with the aim of pushing the formal legal system just enough to draw a greater role in the Dargah’s management. The other group which was already associated with the management of the Dargah countered that the rights of the Dargah management lay with the existing management committee as per the provisions of the Waqf Act.
In this dispute of formal and informal rules for managing the Dargah, with one set stemming from the state, and the other from the succession arrangement of a Sufi Dargah can be seen interacting with each other. We see multiple claimants wanting to exercise management rights over the Dargah. At times, these claims derive their basis through the informal order that runs through Sufi Dargahs. While at others, such claims are made under the formal state law system.Footnote 13 Given that the ownership of the Dargah is vested with God, both parties focus on getting a hold of the next best set of rights available in this structure of ownership—management rights. As it is these rights which will allow them to have a strong hold over the uses that the Dargah spaces are put to, and its finances.
The appointment of the “receiver,” another state official, meant that the richer group which drew its claims on the basis of the formal legal order scored a win in this dispute. Meanwhile, the group that made a strategic choice of relying on the informal order stemming from the Dargah’s succession arrangements, also chose the formal legal order to assert a share over the management of the Dargah. In this instance, however, they experienced a setback, as the appointment of the receiver meant they did not get any official role in the management of the Dargah. A possible reason of why the courts acted so quickly in appointing a receiver, even though the trial itself has not begun, could be to shut the door close on any claims that are made on the basis of the informal order of succession. The stance of the court also needs to be viewed in the larger context that prevailed during the 1970s. At that time, there was a shift in the Muslim political discourse from a focus on educational development and protection of cultural identity to a more aggressive stance, in the aftermath of the 1971 war which led to the creation of Bangladesh. In this phase, the focus was on safeguarding Muslim Personal Law. This involved, among other things, challenges made to the Waqf Board’s authority by Muslim elites in different parts of the country (Ahmed, Reference Ahmed2014). The quick action of the court, in this instance, could also to some extent have been a part of an array of responses that was coming from the judiciary at that time while dealing with the tensions between the Indian state and its Muslim minority population.
Even though the group of families did not manage to secure what they set out to in the court, they continued to rely on everyday actions to make their presence felt and reiterate their rights over the Dargah—an important performance when it comes to claiming property rights. They have hung a board on the entry pathway with the picture of the Peerzada, Syed Fahimuddin Qutbi, the primary complainant in the dispute. Anyone who enters the Dargah would leave with the distinct impression of the Peerzada as being one of the key stakeholders of the Dargah complex—without any regard for what formal legal orders may have to say about that. What is important is that in the eyes of the Dargah visitors, the idea of the Peerzada being a key person becomes acceptable. This is a crucial achievement on the part of the families living inside the Dargah complex, as they are able to assert with some degree of success their right over the Dargah, through the use of informal rules of succession arrangements of Sufi shrines and combining that with a performance of property. Though it does not lead to a material redistribution of tangible resources, what it does lead to is that it establishes the underdog as a key contender in the story of Dargah’s management. This would not have been possible in the absence of the operation of such informal rules.
4.2. Instance 2 of the dispute: Bartering water and open space
The second instance of the dispute which I focus on arose from a “muada” or verbal agreement made between the Dargah management authority and the families living inside the Dargah complex. This issue arose after a verbal agreement was made between the then receiver of the Dargah, Qamar Mahmood and the 15 families who live inside the Dargah complex. Forged in 1998, the terms of this verbal agreement included an exchange of a small piece of land between the two parties. According to the residents, this space was held in common ownership by the owners of the 15 households. The two groups agreed that the owners would donate this land to the Dargah, in exchange of which the Dargah would build a narrow pathway leading up to their houses, and supply water to the residents. The land that was to be exchanged is the “Qutbi Chowk Dhuna Fukra”—the space that is used as a community kitchen and as a resting place (see description in section 3). The residents refer to this space as the “Dhuna.” The houses of the residents is on top of the Dhuna’s roof. The purpose of the agreement was to make life easier for both parties—the residents would have found a more convenient entryway to their homes, besides additional water supply. While the Dargah management authority would have a chance to make use of the Dhuna’s space to their own liking.
Initially, the Dargah authorities complied with the agreement and supplied these houses with water. But the land exchange did not occur. Eventually, the Dargah stopped supplying water to these houses and did not provide water for three years. The residents decided to file a case in the district court, again through the Peerzada Syed Fahimuddin Qutbi, against the receiver of the Dargah so that they could continue to get the promised supply of water. The court ruled in favour of the residents and issued an order that directed the Dargah authorities to share its water with the households.Footnote 14
This court order led to a water sharing arrangement between the Dargah and the 15 households. The Dargah authority now supplies water to the households for two hours per day. When I asked the residents as to why the agreement fell through, they blamed it on the unscrupulous nature of the Dargah management officials. While individuals who are involved in the management of the Dargah did not find the issue worth discussing. In this instance of the dispute, it was the residents who scored a win. While the management authority had to take a step back.
The strength of the claims the residents were making lay in the space where the formal and informal legal systems overlap, within the larger framework of governance that prevails in the urban village of Mehrauli. Residents claim that the land on which their houses lie is a part of the lal dora land, which means their ownership is recognised by the formal legal order. This implies that as owners, if they wish to undertake any kind of construction activity they are required to take necessary approval from the municipal corporation of Delhi (MCD). They also pay property taxes to the MCD, which supplies them with basic amenities like water, while electricity is supplied by private entities.Footnote 15 They have been residing in these houses since the last 50 years or so. But when it comes to the ownership of the Dhuna, or the space that was put up for exchange, matters become slightly complicated. They claimed it was held under common ownership by all of them. The problem with this stance is that if the logic of common ownership is being applied to that space, that right of ownership would automatically extend to the Dargah management authority as well. Simply put, both parties could make rightful claims over the space.
An important thing to note here is that ownership rights over this space can be exercised through use rights, given that it lies within the common spaces of the Dargah. Nonetheless, by trying to set up a barter arrangement, both the residents and the Dargah management staff were trying to exercise “exchange” rights over the space. In this arrangement, which was made through a verbal agreement, it is the formal system of law that regulates land administration in Mehrauli and the Waqf aspect of Dargah, and the informal system of rules that shape the use of common areas of the Dargah which are interacting with each other. These interactions are leading to a blurring of the lines between the two systems, a fact that is clear from the water sharing arrangement that is well entrenched now. The parties to the dispute first tried to come to an agreement verbally. But when that fell through, the residents decided to use the formal system to assert their claim. As in the first instance, they chose a member of the Peerzada family to lead the matter in a court of law to bolster their case, and eventually, got what was promised to them, without giving up on what they had promised to.
5. Redistribution and legal pluralism in the Dargah and other parts of the world
Both instances of the dispute show that the residents of the Dargah complex understood the nuances of the Dargah’s administration as a Waqf property and the blurred nature of the lines that separate the formal and informal legal orders operating in the Dargah. The informal grouping that was formed by the Dargah complex’s households consisted of people with similar economic backgrounds but having different kinds of jobs. In the first instance, when they felt they needed a way to have their grievances against the Dargah management authority addressed, they tried to use the formal order to stress a claim they were deriving from the informal order. In the second instance, they came together to forge a verbal agreement, or muada, of bartering land and water with the Dargah officials, who belonged to stronger economic backgrounds as compared to the residents. Individuals who formulated the agreement clearly understood that the only way by which a transaction of property rights could occur in a Waqf property was through bartering, as any commercial exchange was not permitted by the very nature of the property, unless it had the sanction of the State Waqf Board. When the agreement did not fructify to their satisfaction, the residents kept in mind the importance of choosing the appropriate leadership for their negotiation in a more formal arrangement like the court of law, as they had done in the past dispute over the issue of the management of the Dargah and coalesced around the Peerzada Syed Fahimuddin Qutbi, who as a lineal descendant of the servitors of the Sufi saint, could also lay a claim of succession on the Dargah.
Even as the residents won their claim to water rights inside the Dargah complex, some hostile feelings continue to persist in their minds. For instance, one resident was highly critical of the quality of water that the Dargah authorities supply to them. When I asked him what did they use the water for, he said: “Yeh paani pata hai kahe ke liye use karte hai? Bas Latrine ke liye, kapde dhone ke liye, aur lip-pot. Hum peene ke liye yeh paani nahi peetey.” (We use the water they (Dargah authorities) supply only for cleaning our toilets, washing clothes and houses. We don’t find this water drinkable).Footnote 16
For the Dargah authorities, the sharing of water however is a settled matter. So much so that when asked about the water dispute, the Dargah manager responded by telling me about the dispute over the management of the Dargah. Water sharing between the two groups is now a fully established system of cooperation, even though in some ways it was forced on the Dargah management due to a court of law. The existence of this arrangement allows them to co-exist, despite their hostilities.
On the face of it, the formal and the informal legal orders appear as two clearly separate systems. With one drawing its basis from the formal order, while the other drawing its strength from the informal order of the Dargah, both of which constitute the SASF that operates within it. Considering the result of the first instance in the dispute, it may be said that the most visible purpose that formal laws serve in the regulation of the Dargah is over the issue of who manages the Dargah. The informal rules on the other hand appear to play a central role in everyday lives of the people who reside there and visit the Dargah. But a closer look will show that the formal laws are what Santos calls “large scale” (Santos, Reference Santos1987) law formulated at the Union and State government levels with limited control over what actually transpires on ground. While the informal ones are “small scale” law with a stronger impact on the local context. The ways in which the two groups use formal and informal rules is a reflection of the fluid manner in which power flows within the Dargah. At times, this fluidity helps the subordinate group to push back against the dominant group. This in turn helps in redistributing property in land and water within the Dargah.
In the management issue, the state ruled in favour of the Dargah committee, with the decision being made in the context of the large scale law—Waqf Act, 1995. But in the case of the water dispute, the state ruled in favour of the residents, who had invoked both formal and informal rules to make their claims. What is significant is that two decades after the matter of water sharing was settled in the court, nobody refers to the court judgement anymore. In fact, the disputants could not even recall the arguments that were advanced in the courts to make their case, as a long time has elapsed since the matter was settled in the court. The arrangement is now viewed as a way of life. One thing that is clear in both instances of the dispute is that the SASF of the Dargah provides a scope to individuals belonging to an economically weaker class to change their condition for the better. They are not doing this through a grand revolution, but rather through a struggle based on everyday actions and making a strategic use of the formal and informal rules that constantly interact within the Dargah’s SASF. This in turn provides them an opportunity for reshaping the way in which property rights are exercised in the Dargah. This is not to say that every attempt that is made towards reshaping property will be successful. As a matter of fact, the response of Indian courts while dealing with the tensions of conservation of secular monuments and rights of minorities has been ambiguous over the years, especially when it comes to the protection of Mosques, which happen to be one of the two most important types of Waqf properties (Ahmed, Reference Ahmed2014). This ambiguity partly stems from the political pressures that prevail during the period in which the courts deal with those issues. Consider for instance, the dispute of the Babri Masjid or Mosque in the city of Ayodhya, located in the north Indian state of Uttar Pradesh. The Mosque is listed as a Waqf property in official records (Ahmed, Reference Ahmed2014, p. 208). The site at which the Mosque was located was alleged to be the birthplace of Lord Ram, a Hindu deity. Though this dispute arose in the late 1940s, this allegation was used vigorously for the political mobilisation of Hindus by the Bharatiya Janata Party (BJP) for strengthening its base in the country to make the collective demand of demolishing the Babri Masjid and building a temple for Lord Ram in its place. In 1992, the Masjid was demolished by “Kar Sevaks” or members of sister organisations of the BJP, like the Bajrang Dal, in a gross violation of rule of law. The dispute was finally settled by the judiciary in 2019, which paved the way for the construction of the Ram temple at the site of the demolished mosque, and Muslim communities of the city were awarded a nearby land to build another mosque. Thus, in this dispute, rights of neither the Waqf Board, nor the Muslim elite communities which were a party to the dispute were protected. Several instances of Waqf properties being encroached upon by government agencies in different states, or even transferring of Waqf land to multinational corporations have also been documented (Rahman, Reference Rahman2019). In this context too, judiciary’s response has been a mixed one. For instance, in 2004, Waqf land was transferred to a set of corporate organisations by the then government of Andhra Pradesh, despite opposition from the State Waqf Board, which approached the Waqf tribunal on this matter. In 2011, the Waqf tribunal declared the government action null and void. This was later upheld by the High Court in 2012. However, the Supreme Court of India put a stay on the High Court’s order. Even while these instances were occurring in the southern part of the country, in the capital city of Delhi, in 2011, the government acting on the orders of the Delhi High Court transferred ownership of 123 properties which had been under the government’s control to the State Waqf Board (Rahman, Reference Rahman2019, p. 351).
It is therefore fair to say that in the larger frame of Waqf properties in India, the tensions that play out in the relationship between the Indian state and its Muslim minority, there are multiple instances in which rights of minorities that the Indian Constitution provides them for practising their religion get violated. Further, laws relating to the conservation of heritage monuments and minority rights tend to be pitted against each other. For instance, the Archaeological Survey of India, the government organisation that is responsible for the protection of cultural heritage in India, taking over properties that are supposed to be managed by the Waqf Boards is not unheard of.
Nonetheless, the dispute analysed in this article also shows that at the level of the small law, there is a potential for opening the avenue for reshaping how property is understood as a result of the SASF’s operation. By winning their claim to water rights inside the Dargah, the residents managed to bring about a form of semi-institutionalisation of informal property rights, which shows the effectiveness of the Dargah’s SASF. I call the water sharing arrangement “informal” because the original idea of sharing water does not stem from any formal law, but rather from a verbal agreement. It is the enforcement or semi-institutionalisation of the water sharing arrangement that occurs through the formal legal order. This kind of enforcement is an important achievement for groups like the Dargah residents as it shows the generative potential embedded in the interactions that occur between formal and informal laws. Even though the final push for the water sharing arrangement was given by a court order, informal arrangements like verbal agreements, succession traditions of Sufi Dargahs provided the crucial launchpad for this transition. This aspect of the dispute also shows that formal laws are not always the only legitimate source of property rights on the ground. Rather, it is a combination of formal laws and informal rules that help institutionalise property rights in different contexts. In such situations, legislations too can be understood as a product of the social context in which they are prepared, and the effectiveness of a legislation then depends on how that social context is perceived (Griffiths, Reference Griffiths1986). Another important function that the informal laws serve inside the Dargah is that of bringing stability to the social milieu of the Dargah. When disputes occur, it is this informal order that provides a channel through which different groups are able to work through their hostilities and co-exist. These informal laws help in exercising a form of social control over the use of Dargah’s spaces, which formal laws cannot. Informal rules are able to do this because of their acceptance amongst the people who use those rules. The validity of those rules stems from the wide acceptance with which they are received. One reason for this wide acceptance is the fact that all individuals have learnt the language in which property rights need to be communicated inside the Dargah. They indulge in performances of property accordingly, drawing from the repertoire of rules that is available to them. One might wonder the extent to which this kind of co-existence would be possible, had it not been a Dargah which is traditionally known for being an inclusive space and celebrated for building unity across different religions.
Experiences of property from other parts of the world, especially developing countries where governance structures have also been shaped by colonial experiences bear out similar trajectories. Urban areas of such countries have dense informal settlements where tenure is governed by a combination of formal and informal laws. A characteristic aspect of land regulation in such cities is hybrid legal administrative complexes marked by multiple laws governing tenure in the face of a lack of clear ownership records. Another common aspect of such countries is the continuation of some aspects of colonial governance structures along with postcolonial laws. Experiences from Jordon, Ghana, Brazil, which will be discussed below, are all countries with the above features and which show similar trajectories as seen in Mehrauli.
In Yajouz, Jordan, land market is characterised by its informal nature. Viewing the land market through the lens of legal pluralism, Razzaz argues that the informal land market functions like a non-compliant SASF. He argues that this SASF provides a scope to its members to access relief when faced with oppressive state agencies. What makes Yajouz’s SASF effective is the resourcefulness exhibited by the SASF members in “invoking alternative rules and enforcement mechanisms, including those of the state to protect existing entitlements, promote interests, as well as curb internal misuse” (Razzaz, Reference Razzaz1994). A similar situation exists in the city of Accra in Ghana. Marked by multiple forms of tenure, informal settlements flourish in abundance in Accra. Like in the case of informal settlements in most parts of the developing world, in Accra too the problem of urban land scarcity plays a role in the emergence and co-existence of formal and informal spaces (Boamah and Walker, Reference Boamah and Walker2016). Boamah and Walker argue that “informal spaces are the manifestations of historically entwined and often conflicting legal systems,” which leads to a strategic use of rules to make claims on land. This “complex co-mingling of legal and illegal urban spaces” exposes the problematic of the “formal versus informal” taxonomy of classifying urban spaces in the Global South. They further contend that the use of rules in these contexts should be viewed as occurring in “nomotropic urban spaces,” rather than the dominant oppositional binary of formal versus informal. Nomotropism is defined as “acting in light of rules, but not always in conformity with them” (Boamah and Walker, Reference Boamah and Walker2016, p. 93). The case of the Dargah in Mehrauli, shows a similar use of actions occurring in light of rules/legal orders. It also points to a similar need for moving beyond conceptualising their relationship as a binary. In fact, the Dargah dispute reflects a dialectical relationship between the formal and the informal, in which the two interact with each other through the actions of individuals and groups who have learnt how to make use of different legal orders. This however does not refute the violence of inequality that the state perpetrates through its planning structures, especially in urban areas (Roy, Reference Roy2009). Rather, the point is that despite those planning structures, individuals are able to make use of different rules to claim their space in the city. Roy points out that this does not make the city a “just” place, as structurally the city continues to be an unjust site. The issue here is how formal law is viewed—whether it is considered as the only possible source of legitimacy or if there are other kinds of laws that find some extent of legitimacy amongst the people whom those laws are meant to regulate. The SASF of Mehrauli’s Dargah shows how rules that stem from different legal orders find legitimacy among its occupants/users. At the same time their actions show an awareness of the benefits of receiving a stamp of approval from formal state law. In both instances of the dispute, this is clear in the fact that the Dargah residents opt to approach the formal court of law to assert their claim. However, they continue to use laws that stem from the informal legal order of the Dargah when the formal court system’s ruling is not in their favour in the dispute regarding the management of the Dargah. But in the water sharing dispute, the residents are actually able to use a verbal agreement arrived at informally as a basis for making a successful claim in a court of law. The two disputes thus bring to the fore the existence of a dialectical relationship between the formal and informal legal orders of Mehrauli, and also force one to ask whether the formal legal order is indeed superior to the informal one.
This kind of a dialectical relationship needs to be viewed through the postmodern conceptualisation of law advanced by Santos in his work about the struggles of the working class in Brazil, in which he has shown the multi-layered nature of their struggles, is quite relevant to the case of Mehrauli. Two of his works that are particularly significant are about the functioning of Pasargada’s law (Santos, Reference Santos1977) and the struggles of the residents of Recife (Santos, Reference Santos1987, Reference Santos1992). Written ten years apart, the political contexts in which both struggles occur are vastly different. Pasargada was an informal settlement that had arisen without the required permissions of the state. It emerged under a repressive political system which had the powers to crush all forms of struggles. At that time, the best possible way for the subordinate classes to exercise autonomy was by formulating informal legal orders so that they did not have to approach the formal legal order—which was heavily tilted against them. Faced with housing shortage, the people of Pasargada tried to regulate their basic housing needs through informal regulations, which Santos called the “Pasargada law.” In contrast to Pasargada, the struggles of Recife occurred at a time when the autocratic state in Brazil was waning. At that time, it was important for the state to indulge in actions that would help it gain legitimacy. Grasping the changed dynamics of the political situation, residents of Recife employed a strategic use of formal and informal legal orders to make successful claims for housing, and transform the nature of their ownership from informal to formal.
Building on these works, Santos conceptualises a postmodern idea of law in which legal life is constituted by a collection of multiple legal orders which intersect with each other. They exist in a situation of “legal porosity,” with different legal orders having the ability to mix and reshape the actions of those whom law is supposed to regulate. He calls this presence of multiple intersecting legal orders “interlegality.” When viewed through this lens, customary law too is considered a fact of law, as opposed to a social fact. Thus allowing a way to view the formal as being within the informal and vice versa.
This intertwined nature of the formal and informal shines through brightly in Bernstein’s ethnography of Taiwan’s urban administrative department too (Bernstein, Reference Bernstein2008). Examining the functioning of the urban development department in the city of Taipei, she points out that administrators “usually talked about their roles and goals in terms of negotiation and ambiguity rather than in terms of clear-cut distinctions among straightforward categories of political organisation” (Bernstein, Reference Bernstein2008, p. 940). Turning legality itself into a “field of negotiation,” where the formal and informal collapsed into each other.
Conclusion
Adopting the lens of legal pluralism, I have examined in this article the interactions that occur between formal and informal legal orders in the urban village of Mehrauli. I have focused on one specific local context of Mehrauli, Qutbuddin Bakhtiyar Kaki’s Dargah or shrine. I conceptualised the operation of legal pluralism through the concept of “semi-autonomous social field” or SASF. I showed that the Dargah’s SASF is shaped by two key factors: the nature of property that the Dargah is, i.e. Waqf, and the operation of informal rules that shape the everyday uses of the Dargah’s spaces. The Waqf nature ensures that use rights become the primary basis for organising property rights inside the Dargah. The informal legal order has emerged over the years through the interactions of the people who reside within the Dargah complex, the custodians of the Dargah, and above all, the pilgrims who visit the Dargah. Using disputes as a method of study, I analysed two long-term disputes between two groups—one which resides inside the Dargah premises and the other which is responsible for management of the Dargah under formal legal order.
I have argued that the formal and informal legal orders interact through the actions of the people whom those orders are meant to regulate. The purpose served by the existence of such a mix of two dynamic orders is that of redistribution, even if only in miniscule amounts, and an opportunity for reshaping how property is understood. Both the disputes that I have analysed show that there exist ways of managing use rights in the face of a lack of a clear ownership title. The way in which disputes are negotiated over also reflect the latent functions being performed by formal laws. This is not necessarily what the law was formulated for in the first place. But nonetheless, it ends up being an avenue through which people belonging to a lower economic class are able to assert their claims, and get the better of the dominant class.
One final point that I want to make is that the informal rules that we see in the Dargah, or in spaces like Mehrauli are a result of the ambiguities that prevail there vis-à-vis the property regime. These rules generate a moral economy of property, which flourishes through a combination of performances, operation of informal rules and collectives, and setting up specific types of discourses around property (Chatterjee, Reference Chatterjee2020). The groupings that form within this moral economy act as a channel for negotiating conflicts amongst state and non-state actors. Leading to the partial institutionalisation of informal property rights in Mehrauli’s regime of property. That in turn helps provide stability and the scope for existence despite hostilities in the lives of individuals being governed by a fluid legal order.
