That Waqf is an essential part of Islam is clear with the fact that Waqf constitutes a fundamental pillar of Islamic charity, rooted in the Quran and Sunnah. How can the nature of a Waqf burial ground be changed if the same cannot be applied to other faiths? In religious mattersacross all faiths, the focus should not be on whether a practice is deemed essential, but rather on the broader principles of religious freedom and the constitutional rights guaranteed to all.
Logically, if Zakat is an essential part of Islam, how can’t the functioning of Waqf be an essential part of Islam? It was rightly argued in the court that the element of essentiality has been added to infringe upon the religious rights of Muslims guaranteed by the Constitution.
In the evolving politico-legal discourse on religious freedoms and property rights in India, the institution of Waqfhas become a focal point of contention. What is at stake is not merely land, but the recognition and protection of essential religious practices for over 200 million Indian Muslims. A critical question arises: If Waqf is a well-established pillar of Islamic charity, can its expressions – such as burial grounds – be arbitrarily dismissed as non-essential to the faith?
Mohammed Adeeb, former MP and Chairman of Indian Muslim for Civil Rights, said, “The Waqf Act represents one of the gravest injustices against us. Muslims have been consistently targeted over the past decade. This country claims to be secular in word, but in practice, it is far from it.”
He said, “The government side is trying to divert the Waqfcase, saying that Waqf is not an essential part of Islam.It is factually incorrect because it has been an essential part of Islam from the period of Prophet Muhammadﷺand the court is being misled from the constitutionality arguments. If the court accepts these arguments, there would be no meaning of Article 26. If Waqf is gone, what else is left for us? If our constitutional rights are not protected, what else we can think of?”
Solicitor General Tushar Mehta’sassertion that Waqf is “not an essential part of Islam” has drawn criticism from legal experts, and scholars who argue that waqf, including graveyards, constitutes an inalienable religious practice and tradition, safeguarded by Articles 25 and 26.
Therefore, it’s important to understand the theological, historical, and constitutional foundations of Waqf to explain why Muslim graveyards, including other Waqf lands should be recognised as an essential element of Islamic faith.
Waqf refers to the permanent, irrevocable dedication of property or assets for religious, educational, or charitable use in Islam. Once designated as waqf, the property cannot be sold, inherited, or otherwise transferred. The purpose is simple: to provide ongoing benefits (sadaqahjariyah) to the community and continuous reward (ajr) for the donor.
Several Qur’anic verses encourage perpetual charity: “The example of those who spend their wealth in the way of Allah is like a seed of grain which grows seven spikes…”(The Qur’an, 2:261)
“You will never attain righteousness until you give of that which you love.” (The Qur’an, 3:92)
In a hadith, Prophet Muhammad ﷺ said: “When a man dies, his deeds come to an end except for three: ongoing charity, beneficial knowledge, or a righteous child who prays for him.” (Sahih Muslim)
This concept of ongoing charityunderpins the waqf system, which has supported mosques, madrasas, hospitals, orphanages – and yes, graveyards for over a millennium.
Graveyards as Waqf are a Sacred and Essential Practice. Among the most common forms of waqf is land endowed as a cemetery for Muslims. A burial ground (kabristan) is not merely a plot of land. It is consecrated space, intended for the dignified interment of the deceased in accordance with Islamic rites. Burial in Islam is not optional or symbolic; it is a mandatory and essential rite. The funeral prayer (Salat al-Janazah), the washing of the body, and burial in the earth facing the Qibla are rituals prescribed by both the Qur’an and Sunnah.
To argue that a Muslim graveyard is not an essential practice of Islam is to ignore centuries of uninterrupted tradition and scholarly consensus. Moreover, these cemeteries are usually established through waqf, with the specific intention of serving the community in perpetuity. They are not utilitarian or public land in the civic sense, they are sacred.
Senior Advocate Rajeev Dhawan, during the SC hearings, pointed out that the JPC on the Waqf (Amendment) Bill had acknowledged waqf as being “more directly derived from Hadiths.” This contradicts the government’s claim that waqf is not essential to Islam.
He further argued that charity and religious obligations in Islam are deeply intertwined. The state’s attempt to distinguish between them to deny protection under Articles 25 and 26 is not just constitutionally flawed but religiously misinformed.
Kapil Sibal, appearing in the same hearings, highlighted a pressing concern: if a burial ground is a waqf for 100 years and has been serving the religious needs of the community, how can its status be reversed arbitrarily? To deny its religious nature is to violate the very core of Islamic practice.
The government’s position seems to draw from the 1994 Ismail Faruqui v. Union of India judgment, where the SC held that while namaz is essential in Islam, offering it at a mosque is not necessarily essential unless the mosque holds special religious significance.
This interpretation was used to justify the acquisition of the Babri Masjid site. However, applying the same logic to graveyards risks a slippery slope. A mosque may be replicated; a burial site can’t. A person is buried only once, and the sanctity of the grave must be preserved according to Islamic belief.
Changing the nature of a graveyard is not akin to changing the use of land; it is akin to desecrating a religious site. If graveyards of other communities – Christians, Hindus, Sikhs – are preserved as sacred, why should Muslim graveyards be treated differently?
The issue also brings forth questions of equality and justice. If the burial grounds of other faiths are protected from state interference, the same must apply to Muslim graveyards. Denying this protection not only discriminates against Muslims but violates the principles of secularism and religious pluralism enshrined in the Constitution.
The targeting of waqf lands under the pretext of legal ambiguity or “unauthorised use” has led to the erosion of trust between the Muslim community and the state. It reinforces the perception that Islamic institutions are under siege in the name of reform or national interest.
Rather than undermining waqf, governments should facilitate its revival and modernisation. Across the world, Islamic countries are experimenting with innovative forms of waqf – corporate, environmental, educational – integrating age-old principles with contemporary needs. India, with its vast waqf assets, could do the same, turning them into engines of social progress and poverty alleviation.
However, this requires respecting the sanctity of waqf lands especially graveyards and treating them not as real estate but as religious trusts.
Waqf is more than an Islamic concept; it is an embodiment of the faith’s commitment to collective welfare, dignity in death, and remembrance in perpetuity. To question its essentiality is to question the community’s right to practice Islam fully. And to question the sacredness of Muslim graveyards is to misunderstand both the spirit of waqf and the essence of the religion itself.