Rooted in Islamic tradition, waqf is a timeless institution that stands testament to the principles of community and social welfare. Derived from the Arabic term “waqafa”,” literally meaning to “tie up, bind or detain”, waqf refers to the consecration or dedication of property—movable or immovable—towards the approbation of the divine.

The key feature of this dedication is its perpetuity; the property once committed to waqf belongs to the divine, its benefits are meant to serve one’s family, community, institution, or any pious cause indefinitely. Technically, to any good cause or purpose that secures any benefit to human beings.

The concept of waqf has played an integral role across cultures and societies, particularly in India, where it has served as a tool for both religious and social welfare.

The recent proposals to amend certain sections of the Waqf Act raise significant concerns about the fundamental nature of waqf, its religious underpinnings, and the potential legal and social implications of such changes. There are three pivotal changes that are fundamental to the concept itself and, if allowed, will change the character and meaning of waqf as it is traditionally meant to be.

Islam as a precondition for creation of waqf

The proposed amendment to Section 3, Clause (r), introduces a significant change by specifying that only a person “practicing Islam for at least five years” may create a waqf from their movable or immovable property. This amendment replaces the previous phrasing, which simply allowed “any person” to establish a waqf. The new text seems to impose a stricter condition based on religious practice.

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One major concern with this amendment is the introduction of a vague and unclear legal standard. The phrase “practicing Islam” is open to interpretation, especially in cases where individuals may follow Islamic principles without having formally converted to the religion, raising the question of what constitutes “practicing Islam” under the law.

Moreover, the amendment does not explicitly require the individual to be a Muslim, which creates confusion and ambiguity about who qualifies as eligible to create a waqf.

Introducing a requirement that the person must have practiced Islam for at least five years raises questions about the waqif’s (creator) religious competency and whether they meet the legal standard for establishing a waqf. The resulting confusion could lead to a rise in legal disputes, as courts may have to determine whether an individual qualifies as having “practiced Islam” sufficiently to create a valid waqf.

Perhaps most critically, the restriction based on religious practice contradicts the very essence of waqf as understood in Islamic tradition. Historically, waqf has never been restricted by the religious practice of the individual creating it. In fact, Islamic doctrine has long held that a waqf can be created by any individual, regardless of their religion, so long as the person creating the waqf is free, of full age, (i.e. an adult), and possessed of sound understanding (i.e. must be sane).

As a general rule all persons capable of making a valid gift are competent to constitute a valid waqf. Since the time of Prophet Muhammad, the creation of waqf has been seen as a matter of divine approbation, not necessarily tied to the creator’s religious identity.

This inclusive tradition is evident in Indian history, where non-Muslim rulers and citizens have contributed significantly to the waqf system by donating properties for mosques, idgahs, imambaras, and dargahs. Similarly, Muslim rulers in India have contributed to the construction of temples and other religious institutions for non-Muslim communities. The proposed amendment undermines this rich history of religious inclusivity.

Perpetuity of Waqf

One of the cornerstones of the waqf system is the concept of perpetuity. Once a waqf is established, the waqif relinquishes their proprietary rights over the property, which is then transferred to the Almighty in perpetuity.

In the case of waqf-alal-aulad, the waqif relinquishes ownership of the property and the rights to the property are irrevocably vested in the waqf. Once a waqf is created, neither the waqif nor their heirs retain any proprietary rights over the property, except for the right to enjoy its proceeds in accordance with the terms of the waqf.

Therefore, the property is no longer subject to inheritance, as it has already been dedicated to the waqf and Islamic law clearly states that a waqf-alal-aulad property is inalienable and non-inheritable.

Introducing inheritance rights into the framework of waqf-alal-aulad contradicts this fundamental principle and disrupts the perpetual nature of the waqf. It directly conflicts with the religious nature of waqf and its principles that prioritise the dedication of property to ultimately benevolent causes over personal or familial inheritance.

The proposed insertion of Section 3A states that the creation of a waqf-alal-aulad “shall not result in the denial of inheritance rights of heirs, including women heirs, of the waqif”. This proposed amendment undermines the religious sanctity of waqf and introduces legal ambiguity into a practice that has been clearly defined in Islamic law for centuries.

Since the creation of waqf-alal-aulad is considered a religious practice, any statutory interference that alters its fundamental nature may violate the constitutional right to religious freedom.

Giving in Islam

Within the context of Islam, supporting one’s family is seen as a charitable and pious act, particularly when wealth is dedicated for future generations through a waqf-alal-aulad. This type of waqf involves dedicating property for the benefit of one’s family and descendants, and once the family line is exhausted, the income is directed toward charitable purposes.

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Under Islamic jurisprudence, the waqif is expected to devote the property’s proceeds first to their children and kindred, and then to charitable causes. This order of precedence is rooted in the teachings of the Prophet Muhammad, who advised that the income from a waqf should benefit one’s family first, and only when the line of succession is exhausted should it extend to other charitable purposes.

The proposed amendment to Section 3, Clause (r), Sub-Clause (iv), seeks to insert provisions specifically for the “maintenance of widow, divorced woman, and orphan” as part of the waqf-alal-aulad. This introduction of specific provisions for widows, divorced women, and orphans, though benevolent, conflicts with the established concept of waqf-alal-aulad as prescribed by Islamic law. The proposed amendment interferes with the religious rights of the waqif by altering the order of precedence for the use of waqf proceeds.

The prescribed order of precedence in waqf-alal-aulad is considered a religious duty, and any legislative interference that seeks to alter this framework may infringe upon the waqif’s religious right and risks infringing on the spiritual essence of waqf.

Impacts individuals’ constitutional rights

The proposed amendments to the Waqf Act raise significant concerns about the how they will impact the integrity of the waqf system, its religious underpinnings, and the constitutional rights of individuals. Any legislative changes to the waqf system must be carefully considered to ensure that they do not infringe on religious practices or violate the constitutional rights guaranteed to individuals. In a country like India, with its legacy of religious freedom and cultural diversity, where diversity and religious freedom are enshrined in the Constitution, it is essential to preserve the sanctity of waqf and protect its role as a tool for social welfare, charity, and devotion.

Rushda Khan is a lawyer practising in the Supreme Court.