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This article is written by Shreyansh Gupta.

Analysis of Waqf

Waqf is an inalienable ownership of the property by any legal institution for perpetuity under Islamic law. If a person donates his property for the benefit of Muslims or for other purposes of Muslim religion without any intention of taking that property back then waqf is created. Waqf is a kind of contract, so a person creating a waqf must have the capacity to enter into the contract. The following condition must be satisfied before creating waqf:

  • a person must be of sound mind;
  • a person must not be minor;
  • a person should be capable of handling the financial affairs; and 
  • a person should not be declared bankrupt.

It is not compulsory to be the follower of Islam for establishment of waqf. Non-Muslims can also set up waqf but benefits of the waqf will be used by Muslims only. But if the person who is donating his property by will is ill then that person is subject to the same restrictions as a will in Muslim law. 

Women have played a major role in waqf. Many of the founders of the Ottoman waqf were women. Women have contributed immensely in the waqf system. However, a widow cannot establish a waqf because she is not the absolute owner of the property.  

The property which is used to found waqf should not be haram as per Muslim law. It means the property should be legitimate for a valid contract. That property should not be already gifted to somebody i.e. it should not already be in the public domain. The property once dedicated to the waqf cannot be taken back. In waqf system, if anything is done towards public in good faith then it will not come under waqf system unless that public is follower of Islam. This suggest that the property which is dedicated the waqf should be used only for the benefit of those persons who are followers of Islam. Anything which is used for the benefit of the society which involves different religions then the property under waqf cannot be used. Property under waqf can be utilized for the betterment of the individuals who are Muslims. However, if the waqf is secular in nature then it should be for the benefit of the poor alone. When a waqf is created then it is presumed that a gift is given in favour of God.

The purpose for which the waqf is created should be pious under the Muslim law. On the basis of certain texts of Muslim jurisprudence valid objects if waqf are:

  • Repair and maintenance of Imambaras 
  • Maintenance of relatives and dependants
  • Construction of mosques 
  • Celebration of birth of Ali Murtaza
  • Gift of land for Idgah
  • Grant of property or money to colleges and universities 
  • Paying money to Fakirs
  • Giving money to the poor people to allow them to travel to Mecca 
  • Giving land to keep Tazias during Moharram 
  • For the performance of annual Fateha of a family members
  • Performing ceremonies like Kadam sharif
  • For the construction of free accommodation for pilgrimage of Mecca

How can Waqf be created

There is no specific way to create any waqf. But it can be created through following ways:

    1. By Living Person: When a person declares that his property should be used for charitable purpose or for the maintenance of his relatives or dependants. Then it can be said that waqf is created. But if the person is on death bed then he cannot give more than one-third of his total property (marj-ul-maut).
    2. By Will: When a person wants to dedicate his property to a certain individual or party by will after death then waqf is created but that person cannot give more than one-third of his share through will. In Shia, creation of waqf by will was not allowed earlier but now it is allowed. Also if the person wants to give his property by will to his legal heir then also he cannot give more than one-third of his total property and that too after the assent from other legal heirs.
    3. By Usage: When certain property is already in use for some charitable or religious purpose then it is deemed to belong to the waqf. In this case no declaration is required.

Mutawalli

Mutawalli are the managers of waqf. They enjoy certain powers such as:

  • He has the power to use the usufructs of the property as per the best interest of the waqf. But he cannot sell the property as he is not the owner of the property. Although he can go to court if, in case, he wants to sell the property but he will have to mention the appropriate grounds for selling the property.
  • He is the competent person to file the suit to protect the property of waqf.
  • He can lease the property for less than three years for agricultural purposes and less than a year for non-agricultural purposes after taking the permission from the court. 
  • He is also entitled to get paid for the work by waqif and in case the payment is less then he can go to court to get the high salary.

Appointment of Mutawalli

The waqif has the power to appoint and lay down the guidelines to appoint mutawalli. The following individual may nominate mutawalli: 

  • The founder
  • Executor of the founder 
  • Mutawalli on the death bed
  • The court

Removal of Mutawalli

Once appointed by waqif, they cannot be removed by waqif. But there are ways in which mutawalli can be removed:

  • By court:
  1. If mismanagement of the property is found; 
  2. If the waqf property is not maintained property despite having sufficient funds;
  3. If he intentionally cause loss to the waqf property; or
  4. If he is declared insolvent.
  • By waqf board: As per section 64 of the Wakf Act 1995, the waqf board has the power to remove mutawalli.

Some Important Case Laws

In Md. Ismail vs. Thakur Sabir Ali, the Supreme Court held that the property is dedicated in the name of God and no one can claim it. The court further held that in waqf alal aulad, the property is given in favour of god and only usufructs are used by the descendants.

In Ahmad Arif vs. Wealth Tax Commissioner, the Apex Court held that mutawalli has no authority to sell, lease or mortgage the property of the waqf unless the court grants its permission or the power is clearly mentioned in the waqf nama.  

In Shahar Bano vs. Aga Mohammad, the Privy Council held that there is no legal prohibition on women becoming mutawalli unless the duties that are to be discharged are not religious.

In Bibi Sadique Fatima vs. Mahmood Hasan, the Supreme Court held that money obtained from the waqf property cannot be used by mutawalli to buy the property in the name of his wife and will be sufficient ground to remove mutawalli. 

The courts have right to inspect the activities of waqf and misuse of the property of the waqf is considered as the criminal offence as the Waqf act 1995.

Analysis of Corporate Social Responsibility (CSR)

Corporate social responsibility is the type of the strategy or policy that helps in contributing towards society. It works internally in an organisation and is self-regulated. Earlier in an organization there was no compulsion to have CSR and it was a voluntary approach to give back to the society but now it is compulsory to work towards society under CSR scheme. CSR is not only limited to the welfare of the employees of the company but it also includes welfare of the society. Hence, we can say that the ambit of Corporate social responsibility has increased lately mainly after the coronavirus outbreak which is declared pandemic by world health organizations.

The government of India has said that giving funds to the PM CARES will also come under the CSR policy of the company. The philanthropic work of any company is performed under CSR policy. It is the obligation of the businessman to frame CSR policy and comply with it. Any contribution of the corporates towards any sector in the society comes under CSR. We all know that the health care system of our country needs more infrastructure and facilities. So if big corporate work towards improving the health care system of this country then it will come under their CSR policy. 

As per Section 135 of the Companies Act 2013, every company who satisfy one of the conditions will have to form CSR committee in their corporation: 

  • Net profit 5 crores; or
  • Nat worth of 500 crores; or 
  • Turnover of 1000 crores or more.

The CSR committee shall not have more than 3 directors and in that one should be independent director. The board’s report shall disclose about the formation of such committee and it should also disclose the policy of the CSR committee which is going to be implemented. 

Responsibilities of CSR Committee

  • To frame CSR policies and the activities that are to be undertaken by the corporate to comply with the policy.
  • To assess the overall expenditure that is required to fulfil the CSR policy.
  • To monitor whether the CSR policy is meeting its objectives for which it was implemented. 

Each company shall spend at least 2% of their net profit towards CSR policy. In case the company does not comply with CSR guidelines then they are liable to pay a fine of around 25 thousand and in case of non-payment of fine they shall be punished with imprisonment. If the amount which was supposed to be used for CSR is not used then within 30 days such amount should be deposited in a new bank account in which only unspent CSR money is kept and such amount should be used within 3 years from the date of such deposit.  

Activities which can be done under Corporate Social Responsibility

There are several activities that can be undertaken to comply with the CSR policy of the company. Many of the activities are given in the Schedule VII of the companies act 2013. Government may also include several other activities from time to time under CSR. Government recently stated that any contribution towards PM CARES will be considered under the CSR activity. Some activities under Corporate social responsibility are: 

  • Contribution towards education. 
  • Eradication of poverty and hunger.
  • To enhance job opportunities through vocational skills.
  • Women empowerment and gender equality.
  • Working towards Sustainable Development.
  • Giving funds to those who are fighting with diseases such as cancer, HIV, AIDS etc.
  • Other activities as prescribed by the government of India.
  • Contributing to social projects.

Activities which cannot be done under Corporate Social Responsibility

There are certain activities that are not considered under CSR initiative and are provided by the Ministry of Corporate Affairs though notification. These activities are as follows:

  • Such activities which are part of the business operations by the corporate. 
  • Activities which are taken outside the territory of India.
  • Activities that provide benefit only to the employees of that company.
  • Spending money in awards, marathons or sponsoring any tv show or any such activity will not fall under CSR expenditure.
  • Money spent on complying with the statutes such as labour laws etc.
  • If the funds are given to any political party then it will also not fall under CSR expenditure.

Implementation of Corporate Social Responsibility

As stated in Companies Act, 2013, the activities that are mentioned in schedule VII can be done in the following manner:

  • CSR activities must be performed within India and preferably in the area where the company operates its business.
  • These activities can be carried out by forming trust or charitable companies established within India.
  • CSR activities may include fresh or ongoing projects.
  • CSR activities can also be executed in combination with other companies but each of the companies will have to report its CSR activities individually.
  • Companies may also spend 5% of their CSR expenditure in CSR awareness programs towards its employees.

From the above analysis, it is evident that CSR is beneficial for society and it is a good initiative. Earlier it was to be done voluntarily by corporates but now it is also a statutory obligation under the companies act 2013. If any company is found to be in violation of the CSR policy then they may be fined and in default of the fine they may be imprisoned. But, still there is a lot of confusion on taxes related to CSR spending. Here the role of government becomes important to clarify on the doubts that are not explicitly mentioned in the statute.

Comparison of Waqf and Corporate Social Responsibility

  • Waqf is created for the benefit of Muslim community whereas CSR works towards betterment of society as a whole irrespective of religion.
  • In the waqf system, the property is actually given in favour of God whereas in CSR, the money is used for the benefit of society in activities prescribed by the government.
  • Creation of Waqf is not compulsory whereas formation of CSR for companies satisfying the eligibility criteria is must as it is statutory obligation.
  • Waqf is regulated by the Wakf Act 1995 whereas CSR is regulated by the Companies Act 2013.
  • Gift given in Waqf cannot be taken back whereas in CSR, the funds belong to the company and they just have to use towards CSR activities in a given financial year.
  • Waqf is not under any obligation to publish the use of its property whereas CSR activities shall be published on the Company’s website.
  • Activities to be performed by Waqf are given in Quran whereas activities to be undertaken by CSR are given in Schedule VII of the Companies Act, 2013.
  • The Waqf system works as per their objectives whereas the CSR system may also work on the objectives of the Government.
  • Waqf is more religious centric whereas CSR is more society centric.
  • Waqf may not be sufficient to tackle environmental issues but CSR policies may prove helpful in tackling long term environmental issues.

References

  • Jason Fernando, Corporate Social Responsibility (CSR), Investopedia (Feb 2, 2021), https://www.investopedia.com/terms/c/corp-social-responsibility.asp 
  • Corporate Finance Institute. (2020, August 14). Corporate Social Responsibility (CSR). https://corporatefinanceinstitute.com/resources/knowledge/other/corporate-social-responsibility-csr/
  • Thorpe, D. (2018, June 27). Why CSR? The Benefits Of Corporate Social Responsibility Will Move You To Act. Forbes. https://www.forbes.com/sites/devinthorpe/2013/05/18/why-csr-the-benefits-of-corporate-social-responsibility-will-move-you-to-act/?sh=440d314f65a3
  • Vishwanath, A. (2019, October 17). Explained: How a waqf is created, and the laws that govern such properties. The Indian Express. https://indianexpress.com/article/explained/explained-how-a-waqf-is-created-and-the-laws-that-govern-such-properties-6072476/

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