Introduction

The Waqf (Amendment) Bill, 2024, has been referred to a Joint Parliamentary Committee (JPC) due to opposition from the Narendra Modi government’s allies and criticisms from opposition parties. The bill proposes amendments to the Waqf Act, 1995, with a focus on addressing issues related to family waqfs and their impact on inheritance laws.

Rationale for Family Waqf

Concept of Waqf:

• Definition: Waqf is an Islamic endowment system where a person dedicates a property or asset for charitable, religious, or social purposes. The property itself is not sold or transferred, but its benefits are used for the intended cause.
• Koranic Basis: While the Koran does not explicitly mention "waqf," it encourages charity through various verses, such as those promoting giving to family members and the poor (e.g., Koran 2:215, 3:92).

Types of Waqfs:

1. Waqf Khari: Public waqf dedicated to community welfare and charitable activities.
2. Waqf Al-Ahli/Waqf Alal-Aulad: Family waqf, intended to benefit the donor’s family members.
3. Waqf Al-Mushtarak: A combination of public and family waqf, aiming to benefit both the family and the wider society.

Historical Practice:

• Theological Basis: The concept of family waqf is supported by Islamic teachings that prioritize charity to family members. The Prophet Muhammad endorsed this practice, as reflected in hadiths encouraging spending on one''s family (e.g., "The greatest reward is what you spend on your family").
• Early Examples: Prominent figures, including the Prophet’s companions, established family waqfs to support their families and protect property. For example, Abu Bakr and Omar endowed properties to their families.

Purpose of Family Waqf:

• Protection of Property: Family waqfs were used to prevent property fragmentation and manage agrarian assets effectively. This system aimed to preserve wealth within the family and eventually contribute to public welfare.

Colonial and Post-Colonial Developments

Colonial Response:

• Privy Council Decision (1894): The British Privy Council initially invalidated family waqf, arguing that its benefits to the public were too indirect.
• Reversal (1913): This decision was overturned by the British government, acknowledging the validity of family waqfs. However, colonial influences led to various restrictions.

Global Trends:

• Restrictions and Abolitions: Several Muslim-majority countries introduced restrictions or abolished family waqfs due to colonial influences and land reform laws.

For example:

1. Egypt: Restricted family waqfs to two generations in 1946 and abolished them in 1951.
2. Syria: Abolished family waqfs in 1949.
3. Kuwait: Restricted them to two generations in 1951.
4. Iraq, Tunisia, Libya, UAE: Various restrictions and abolitions occurred in the mid-20th century.

Current Practices:

• Countries Permitting Family Waqfs: In countries like India, Bangladesh, Malaysia, Singapore, and Indonesia, family waqfs are allowed but face limited statutory support and tax privileges. They are not included in waqf surveys or entitled to exemptions from taxes like capital gains or estate duty.

Current Legal Framework in India

Existing Legislation:

• Waqf Act, 1995: Defines family waqfs but lacks comprehensive regulatory oversight. Family waqfs are subject to different rules compared to charitable waqfs.
• Income-Tax Act, 1961: Family waqfs are taxed on their income even when used for charitable purposes. Estate duty applies to property transfers, contrary to waqf principles.

Challenges Faced:

• Taxation Issues: Family waqfs do not receive the same tax relief as charitable waqfs, impacting their financial sustainability.
• Land Reform Laws: Agrarian family waqfs have been affected by government land reform policies, often acquired at nominal prices.

Proposed Reforms in the 2024 Bill

Key Amendments:

• Section 3A(2): Introduces a significant reform stating that family waqfs cannot deny inheritance rights to heirs, including women. The provision allows Muslims to create a family waqf for up to one-third of their property, ensuring that female heirs receive at least a token benefit.

Potential Problems:

• Token Benefits: The bill’s provision allows family waqfs to remain valid even if female heirs receive less than their entitlement under Islamic inheritance laws, which could undermine the intent of providing fair inheritance.
• Uniformity in Testamentary Laws: The bill raises the issue of whether similar restrictions should apply to non-Muslim testamentary practices. For example, under the Hindu Succession Act, 1956, a Hindu can allocate property to a son to the exclusion of other heirs, including women.

Recommendations for Improvement

Uniform Civil Code (UCC) Consideration:

• Integration into UCC: To address disparities, the JPC should consider how the proposed reforms align with broader legal principles and whether they should be integrated into a Uniform Civil Code or Secular Civil Code.
• Ensuring Fairness: The bill should be adjusted to ensure that inheritance laws are equitable across all communities and provide consistent rights and protections for all heirs, regardless of religious background.

Conclusion

The Waqf (Amendment) Bill, 2024, seeks to address critical issues related to family waqfs and inheritance rights. While it proposes notable reforms, it also presents challenges that require careful consideration. The JPC’s review and potential modifications could help ensure that the bill promotes fairness and consistency in inheritance laws and aligns with broader legal principles.