Islam Promotes Charity, the Constitution Protects It—But Is the Government Undermining Both?  

Islam strongly encourages charity and good deeds. Waqf is a charitable act, where the benefit of a property or asset is dedicated to a specific cause (e.g. education, healthcare, mosques, graveyards) while the original asset remains intact. Several verses of the Quran encourage acts of charity and emphasize the rewards for those who give generously for the sake of Allah.

Surah Al-Baqarah (2:261). “The example of those who spend their wealth in the way of Allah is like a seed of grain that sprouts seven ears, in every ear a hundred grains. And Allah multiplies [His reward] for whom He wills. And Allah is all-encompassing and Knowing.”

Surah Al-Baqarah (2:267). “O you, who have believed, spend from the good things which you have earned and from that which We have produced for you from the earth.”

These verses stress the importance of giving the best of what one has for charity, a key element in waqf.

Sadaqah Jariyah (Continuous Charity). The concept of waqf aligns with sadaqah jariyah (continuous charity), which provides ongoing benefits even after a person dies. The Prophet Muhammad ﷺmentioned this in a hadith;

“When a man dies, his deeds come to an end except for three things: sadaqah jariyah (continuous charity), knowledge from which benefit is gained, or a righteous child who prays for him.” (Sahih Muslim).

Waqf is a form of sadaqah jariyah where the asset or property continues to generate benefits for the community.

Helping Others in Need. Waqf is often used for charitable purposes to support those in need. The Qur’an repeatedly stresses the importance of looking after orphans, the poor, and the needy;

Surah Al-Baqarah (2:177). “Righteousness is not in turning your faces toward the east or the west, but righteousness is in one who believes in Allah, the Last Day, the Angels, the Book, and the Prophets and gives his wealth, despite love for it, to relatives, orphans, the needy, the traveller, those who ask [for help], and for freeing slaves…”

Honouring Contracts and Trusts. Waqf involves placing an asset under a trust ensuring that its benefit is used according to the stipulated cause. Trust and contracts are highly emphasized in the Qur’an;

Surah An-Nisa (4:58). “Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice…”

Surah Al-Ma’idah (5:1). “O you who have believed, fulfil [all] contracts.”

These verses emphasize the importance of fulfilling the terms of a waqf, treating the endowed property as a trust that must be honoured in its intended purpose.

So we see that the principles of charity, social justice, and fulfilling trusts form the foundation of the waqf system. The act of endowing property or wealth for the benefit of the community is rooted in these Quranic values, as well as the guidance provided by the Prophet ﷺthrough his hadith.

The Indian Constitution

The Indian Constitution, while not explicitly mentioning Waqf by name, provides several key principles and provisions that relate to the protection and management of waqf properties under its broader framework of religious freedom, minority rights and the right to manage religious and charitable institutions.

Article 25 (Freedom of Religion). It guarantees all citizens the freedom to practice, profess, and propagate their religion. This includes the management of religious institutions such as waqf properties, which are dedicated to religious or charitable purposes in Islam.

Waqf properties, integral to the religious and charitable activities of Muslims, fall under the protection of this article, as they are established and managed for religious purposes.

Article 26 (Freedom to Manage Religious Affairs). It explicitly grants religious denominations the right to establish and maintain institutions for religious and charitable purposes. This includes waqf properties, often used for charitable, religious, or educational purposes within the Muslim community.

This article forms the constitutional basis for Muslims to manage waqf properties according to Islamic principles, as long as they conform to the general law of the land.

Article 29 (Protection of Interests of Minorities). The article safeguards the rights of minorities to conserve their distinct culture, language, and heritage. Waqf, as a traditional Islamic institution, is part of the cultural and religious practices of Indian Muslims. Any law or action that undermines the autonomy of waqf properties could potentially infringe on these rights.

It can be seen as an indirect safeguard for the continuation and protection of waqf properties, as they are part of the religious and cultural heritage of the Muslim community.

Article 30 (Right of Minorities to Establish and Administer Educational Institutions). Waqf properties are often used to fund and maintain educational institutions. Article 30 ensures that minorities, including Muslims, have the right to establish and administer their educational institutions. This is relevant to waqf properties, as many waqf assets are used for this purpose.

This provision strengthens the ability of Muslims to use waqf properties for educational purposes, without undue interference from the state.

Article 31A (Protection of Property Rights). Although Article 31, which explicitly dealt with property rights, was removed by the 44th Amendment in 1978, Article 31A still provides safeguards against the arbitrary acquisition of properties. This is relevant to waqf properties, as it ensures that any government action concerning the acquisition of waqf lands must comply with constitutional safeguards.

While the government has powers to acquire land, including waqf properties, it must ensure that these actions are lawful and do not violate the fundamental rights of citizens.

Relevant Statutory Acts Regarding Waqf

In addition to constitutional provisions, the Waqf Act of 1995 (now being challenged by the proposed Waqf Amendment Bill 2024) governs the administration of waqf properties in India. This act provides for the establishment of State Waqf Boards to manage waqf assets and ensures that these properties are used for their intended religious and charitable purposes. Any changes to this framework, such as those proposed in the 2024 Bill, could have serious implications for the autonomy and management of waqf properties, potentially impacting the rights guaranteed under the Constitution.

The central government’s intention to amend the Waqf Act 1995, in the way it is drafted as per the Waqf Amendment Bill 2024, is not in the positive sense. It is to undermine the rights of the Muslims of the country. It is an attack on the very identity of the Muslims. It has given itself a free hand to deal with, manage, monitor and take away the waqf properties at the slightest pretext. This bill is more dangerous than the changes that they have brought in for the Muslim community, NRC, Triple Talaq, Babri Masjid, and so on. In a few generations, children will have fewer religious institutions than today. Lands gifted by the waqifs may be taken away or disputed (thus putting it out of use for the Muslims). Mutawallis (caretakers of waqf properties) are being forced to the dictates of the government-appointed collectors. It is high time, the community wakes up to the dangers of the nefarious intentions of the Modi government.