The Islamic Jurisprudence and Historical Evolution of Waqf in India

By Ghulam Rasool Dehlvi, New Age Islam 11 April 2025 Waqf (plural: Awqaf) A ‘Waqf’ is a permanent dedication of movable or immovable property for purposes recognized by Muslim law as pious, religious, or charitable. Waqf is purely an Islamic concept of endowment which is considered a continuous charity, Sadqa-e-Jariyya, in which a property or wealth is permanently dedicated to the cause of public welfare or community development to seek the pleasure of God. Historically, Waqf has been a fundamental pillar of the Muslim community as well as public welfare. Islamic jurisprudence has therefore outlined and clarified certain principles and regulations regarding the Waqf, so that it can be used properly and it can continue forever. Today, while there is a greater need to understand the who concept and issues of Waqf, it is time to restore the original spirit of Waqf, so that this institution may play a better role for the betterment of the community in the light of Islamic jurisprudence. In Islamic jurisprudence, there are several significant legal dictates and important Fiqhi rulings and conditions (Ahkam & Shara’it) regarding the Waqf endowments. Therefore, it is important to know them first. Different schools of Islamic law and jurisprudence (Hanafi, Shafi'i, Maliki, Hanbali) have explained the principles and regulations regarding the Waqf endowment in detail. As majority of Indian Muslims follow the Hanafi school, I would like to briefly outline here the Fiqhi principles of Waqf in the light of Hanafi law. 1. Jurisprudential Definition Of ‘Waqf’ According to the Hanafi jurisprudence, ‘Waqf’ endowment means dedicating the ownership of something to Allah, so that its benefits optimally reach the deserving ones only. The Islamic jurists have defined the term ‘Waqf’ (which literally and etymologically means ‘to stop’ or ‘to retain’) as follows: “Hasb Al-Asl Wa Tasbil Al-Manafa’ah” (i.e. retaining the original property and continuing its benefits or gains for the public good.) This definition makes it patently clear that the Waqf endowments including all kinds of the wealth and property cannot be sold, used as mortgage or given as gift. It can neither be distributed by inheritance, nor become the personal property or family fiefdom of anyone. 2. Basic Elements of Waqf According to the Hanafi jurists, there are four basic elements of Waqf: 1. Waqif (the one who made the Waqf) must strictly adhere to the follow: • The Waqif must be an adult, sane person, and have full control over his property. Hence, a person who is insane, a minor, or a forced person cannot make a Waqf. 2. Mauquf: The thing being endowed. • It must be something that can last (such as land, a building, a garden). • Things that do not last (such as food and drink) cannot be considered ‘mauquf’. 3. Mauquf Alaih: The beneficiary or beneficiaries (for whose benefit the Waqf has been made). • The benefit of a Waqf can be given to a specific individual, institution, or ordinary Muslims. • If the Waqf is made publicly in the path of Allah, then mosques, madrasas, the poor, the orphans and the needy can be entitled to it. 4. Segha-e-Waqf: The Declaration Of An Endowment Through Words. • Clear words need to be used necessarily for an endowment, such as: “I have endowed this land for a mosque” or “This land is dedicated for orphans”. • And if the words are not clear, then the intention will be carefully looked at. 3. Rules and conditions of Waqf endowment The Islamic legal theorists and jurists have set the following conditions for the validity of an endowment under the Waqf: • Condition of permanence: An endowment must be permanent. Temporary or conditional endowments are not permissible. • Condition of departure from the owner’s property: The endowment property must depart or pass from the first owner’s ownership. • Condition of benefit: Ensure that it is possible to benefit from the endowment. • Condition of disposal: The owner who endows must have full control over the property. Causes For Invalidation Of An Endowment An endowment may be invalid in the following cases: • If a person dedicates something that he does not own. • If the endowment is for an illicit purpose, such as promoting immorality and religiosity. • If the purpose of the endowment is against the spirit of Islamic Sharia. 4. Types of Endowments (1) General Endowment (Waqf-e-Aa’m) A endowment that is made for all Muslims or for a public welfare work, such as: • Mosques • Madrasas • Orphanages • Hospitals (2) Special Endowment (Waqf-e-Khas) A endowment that is for the benefit of a specific individual or family, such as: • Waqf alal-Aulad: A person endows his land for his children, and stipulates that as long as the children exist, they will benefit, and then it will be for the poor. (3) Immovable And Movable Endowments • Immovable endowments: land, buildings, gardens, etc. (according to most Muslim jurists, are the real endowments). • Movable endowments: money, books, furniture, agricultural equipment (according to some jurists, are also permissible to be endowed). 5. Management and Administration of Waqf (1) Mutawalli: The Trustee or Guardian of the Waqf • The management of the Waqf is entrusted to the Trustee, who must be an honest and capable person. • If the Trustee commits a breach of trust, he can be removed. (2) Use of the Waqf • The endowments must be used for the same purpose for which it was dedicated. • If the endowment is for a mosque, it cannot be used for any other purpose. (3) Income of the Waqf • The income of the Waqf must be spent in accordance with the Islamic Law. • If the endowment is not used for a specific purpose, it should be used for the poor, schools, and other welfare works. 6. Modern Jurisprudential Issues of Waqf (1) Sale of Waqf Property • Generally, Waqf property cannot be sold, but according to Hanafi jurisprudence, if the interest of the endowment is lost or if it faces a serious damage, it is permissible to sell it with the permission of the Qadi (Shariah Court). (2) Government Control of Waqf • Government control f the Waqf properties, sometimes lead to encroachments, mismanagement and corruption. According to the Islamic jurists, the government has only the right to supervise, not to take possession. (3) Modern Forms of Waqf • Nowadays, several new forms of Waqf are also being introduced, such as Waqf funds, Waqf investments, and Waqf corporations, which require ijtihad and a critical and creative modern jurisprudential rethinking. 7. Evolution of Waqf Administration Through Legislative Framework The governance of Waqf properties in India has been regulated through several legislative enactments aimed at improving administration and preventing mismanagement: I. Privy Council Ruling (1894): The Privy Council ruled that Waqf-alal-Aulad was invalid because Waqf should serve public religious or charitable purposes, not just family benefits. This decision caused dissatisfaction among Indian Muslims. II. The Mussalman Wakf Validating Act, 1913: This Act clarified and affirmed the right of Muslims to create Waqfs for the benefit of their families and descendants, with eventual charitable purposes. III. The Mussalman Wakf Act, 1923: Introduced to improve the management of Waqf properties by ensuring proper accounting and transparency in their administration. IV. The Mussalman Wakf Validating Act, 1930: Provided retrospective effect to the 1613 Act, reinforcing the legal validity of family Waqfs. V. The Waqf Act, 1954: Established State Waqf Boards (SWBs) for the first time, providing for the systematic administration, supervision, and protection of Waqf properties. VI. Amendments to the Waqf Act, 1954 (1959, 1964, 1969, and 1984): These amendments aimed to further improve the administration of Waqf properties. VII. The Waqf Act, 1995: This comprehensive Act repealed the 1954 Act and its amendments. Key provisions included: - Creation of Waqf Tribunals to adjudicate disputes relating to Waqf properties. - Strengthening the Central Waqf Council (CWC) by empowering it to issue directives to State Waqf Boards in cases of irregularities or violations of the Act. VIII. the Waqf Act, 1995, was further amended in 2013 through The Waqf (Amendment) Act, 2013, introducing significant changes, including: - Change in the definition of Waqf – The amendment provided for any person to create Waqf in place of ‘a person professing Islam’. - Sect specific membership in Waqf boards – In case of Shia Waqf the member shall belong to Shia Muslim and in case of Sunni Waqf the member shall belong to Sunni Muslim. - Overriding effect of Waqf over other laws – The Amendment provided for overriding effect of Waqf on any other law. - Amendment provides that the District Magistrate shall be responsible for implementation of the decision of the Board. - Despite these amendments, challenges persisted in effectively addressing Waqf related issues. Some of the key challenges are as following:- - Lack of transparency in Waqf property management. - Incomplete surveys and mutation of Waqf land records. - Insufficient provisions for women’s inheritance rights. - Large number of prolonged litigations including encroachment. In 2013, there were 10,381 pending cases which have now increased to 21,618 cases. - Irrational power of the Waqf Boards in declaring any property as Waqf land based on their own inquiry. - Large number of disputes related to government land declared as Waqf. - Lack of proper accounting and auditing of Waqf properties. - Administrative inefficiencies in Waqf management. - Improper treatment to Trust properties. - Inadequate representation of stakeholders in Central Waqf Council and State Waqf Boards. Regrettably, despite several reforms in different periods, the Waqf administration continues to face inefficiencies and mismanagement with around 9 lakhs 45 thousand acres of lands being underused, many encroached and misused. ----- A Regular Columnist with Newageislam.com, Ghulam Rasool Dehlvi is an Indo-Islamic scholar, Sufi poet and English-Arabic-Urdu-Hindi writer with a background in a leading Sufi Islamic seminary in India. He is currently serving as Head of International Affairs at Voice for Peace & Justice, Jammu & Kashmir. URL: https://www.newageislam.com/islam-politics/islamic-jurisprudence-historical-evolution-waqf/d/135128 New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism