Author: Atharv Bhatkhande, Avantika University
TO THE POINT
Islamic Waqf converts property into God-created eternal property – forever committed to divine or altruistic use like mosques, schools, or alleviation of poverty. Such is necessarily inimical to state untrammelled control to expropriate land for highways or “public good.” Conformity with usual property law in being enforceable on Waqf denies religious provenance. Genuine solution must involve explicit formal legal acknowledgment of Waqf’s special nature – and not settlements diluting its theological character.
ABSTRACT
Waqf is Islamic single paradigm of ownership: property is removed from private commerce and irrevocably dedicated to religious use. Theological assumptions of Waqf – eternity (infinite time span) and non-transferability (inexpert custody) – create inherent incompatibility with state powers like eminent domain (compulsory acquisition), zoning regulations, and escheat (seizure of ownerless property). Designation of Waqf as traditional “charitable trust” ignores its religious commitment. This argument holds that only effective legislation providing extra Waqf protections can resolve this constitutional conflict. THE IRRECONCILABLE COLLISION
Waqf’s Islamic law character as divine inevitably comes into conflict with contemporary rule.
Waqf property consecrated necessarily does not belong to humans, and human beings are merely trustees. The donor’s intended purpose – keeping the mosque running, operating an orphanage, or educational assistance – must be continued on and on. Such purpose is hallowed; Waqf property may not be donated, inherited, sold, mortgaged, or taken over for personal debt. Trustees (Mutawallis) are Sharia-mandated to administer property and disperse income solely to specified purpose. Any diversion is permissible only where the original purpose is rendered physically impossible (e.g., a unique source of water irrevocably lost), and resources are required to provide finances for the nearest available Islamic charitable alternative. This religious perpetuity tests state authority.
States claim authority to take any property for “public purpose” (e.g., highways, airports) under eminent domain, paying money only. Zoning regulations can limit centuries-old places of worship. Escheat rules are against Waqf’s perpetuity. Most importantly, state taking destroys Waqf’s divinely mandated purpose – turning mosque property into business use is a covenant violated with God irrespective of payment. State-run Waqf Boards also have the tendency to create the conflict by replacing Mutawallis, sanctioning long-term commercial leases effectively transferring control, or misappropriating funds to state goals, violating donor intention and core Sharia principles. CASE LAWS: CONFLICTS MANIFESTED
Global case law mirrors this perennial tension.
India’s 2023 Uttar Pradesh Waqf Board disputes involved controversial long-term leases of precious Waqf realty to developers, raising perpetuity issues. Courts usually manage Waqf Act procedural compliance in evading further Sharia controversy. Large-scale infrastructure projects like Delhi Metro expansions always take over Waqf properties, and courts approve the takeover but for higher compensation – refusing to ignore irreparable destruction of sacred purpose. The Ayodhya judgment (2019) captured the combustibility where state power meets religious land consecration. Pakistan’s Supreme Court (e.g., Federation of Pakistan vs. Muhammad Sharif, 2010) struggled over conflicts between state-appointed Waqf officials and Islamic fiduciary obligations. Huge land acquisitions for initiatives such as the China-Pakistan Economic Corridor sparked protests against abuse of Waqf principles. Malaysia’s Majlis Agama Islam Wilayah Persekutuan vs. Victoria Jayaseele Martin (2019) reaffirmed the binding nature of donor terms, limiting state interference to modify Waqf’s object. CONCLUSION: THE INESCAPABLE IMPERATIV
Existing legal systems – compelling Waqf into secular property regimes – are structural failure. They conflict with Waqf’s divinely predestined timelessness and function. Claiming state eminent domain over God’s title is legally nonsensical and violates Muslim religious freedom, repudiating centuries of consecrated promises. Judicial balancing tricks are insufficient. States have an either-or decision: truly serve Islamic institutions or abandon secular property rights enjoy absolute dominance.
Going on, specially enacted legislation alone can correct that
Legislative “Waqf Immunity”: Enact specially targeted legislation expressly acknowledging Waqf sui generis (unique) property subject to overwhelming control by Sharia law. Taking by the state must be accompanied by extremely compelling reason – absolute, unavoidable public necessity (e.g., a project of vital safety infrastructure with no alternative location). Economic “public benefit” by itself is not sufficient.
Sacred Purpose Guarantee: In cases of essential buys, demand full functional replacement: providing similar land/property in the same position able to serve the same original purpose, functional before displacing the existing site. Solely monetary restitution is theologically hollow.
Sharia-Conformant Stewardship: The Government Waqf Boards must serve as Sharia compliance monitors and not a substitute for Mutawallis. Management must be in the hands of professional Islamic trustees with fiduciary duties (Amanah) to donor purpose, not government revenue objectives. Qualified Sharia tribunals must resolve disputes.
Total Prohibition on Transfer: Prohibit irrevocably: sales, mortgages, leases over 30 years, and diversion of assets/income against donor instructions. Put an end to the exploitation of Waqf as a real estate stock by states.
Forced Transparency: Mandatory independent Sharia-compliant audit and public disclosure of all Waqf assets, income, and expenses to inhibit misuse and instill confidence.
Overlooking the inconsistency overlooks religious freedom and erases centuries of Muslim faithful dedication. There is no compromise. Only alternative is to impose strong protection. Much more moderate approaches strip all manner of veneer of respect for Waqf’s Islamic character.
FAQS
Q: Isn’t Waqf really a religious charitable trust? Why special treatment?
A: No. Traditional trusts are capable of being dissolved, amended by courts, or lapsing. Waqf is specific in purpose and immortal by the will of God. Compliance with traditional trust law is a violation of its religious singularity. Religious freedom requires legal recognition of that difference.
Q: Doesn’t state sovereignty include ultimate land appropriation rights?
A: States can claim this prerogative, but Waqf is not “property.” It’s a covenant blessed by God. Expropriation is a negation of an eternal vow to God. The threshold of expropriation for Waqf should be orders of magnitude greater than secular property.
Q: Couldn’t old Waqf uses be repurposed? (e.g., turn a historic school into a clinic?)
A: Evolution contravenes the sacred commitment. Change of purpose is permissible under Sharia only where physical impossibility exists of the original purpose. Boards’ or states’ agencies cannot negate the divine mandated purpose of the donor. The purpose is determinate.
Q: Won’t special Waqf legislation lead to discrimination?
A: Religious freedom is accompanied by some concessions (e.g., Sikh religious symbols of faith, religious rituals of killing). Enjoyment of Waqf’s theological uniqueness is demanded for Muslim religious life. Proper legislation prevents chaos; present uncertainty nourishes conflict. Actual equality is respectful of actual differences.
Q: What do states do with poorly managed or inactive Waqf property?
A: Mismanagement is a state responsibility, not state expropriation. Solutions would include applying stringent Sharia-governance, removing corrupt trustees, making it transparent, and placing Islamic oversight – never coercive “repurposing” – under its strictures.
Q: Is Waqf protection feasible in modern states?
A: Yes. Space is already reserved in countries for heritage, national parks, and diplomatic space for values that are exceptional. Religious value under waqf deserves no less (if not more) consideration. Inbuilt constraints are already accounted for in town planning. Giving up essential religious freedoms is a more expensive endeavor to society than modifying infrastructure.
