The Unconstitutionality of the Waqf Amendment Act, 2025 and the Erosion of Minority Rights – NUALS Law Journal
Varun Pandey
Introduction
The Waqf (Amendment) Act, 2025, was enacted in both Houses of Parliament following a period of vigorous discussion and partisan conflict. It signifies a substantial reform within the Waqf administration in India. Although it implements many initiatives for inclusivity and administrative reform, it simultaneously centralises governmental authority and diminishes the independence of Muslim community institutions. The apprehension within the Muslim community chiefly arises from the belief that their control over Waqf lands and structures, which have housed mosques, schools, and charitable organisations for generations, will be significantly restricted by the recently revised Act. The Act constitutes an infringement on Muslim personal laws and contradicts the constitutional principles established in Articles 25, 26, and 29. These articles unequivocally safeguard the freedom of religion and cultural practices, affirming the rights of communities and individuals to autonomously engage in and oversee their religious affairs and also undermine the principle of federalism, which is enriched in the Indian constitution and has been retreated by the Supreme Court in its various judgements.
This article employs a doctrinal and comparative constitutional approach, including case law, statute analysis, and inter-community comparisons. It consists of five sections, which respectively outline the following: Part I presents the concept and legal underpinnings of waqf; Part II investigates the 2025 Amendment’s discord with Articles 25 and 26; Part III assesses its repercussions on personal law and non-discrimination; Part IV scrutinises federalism issues; and Part V culminates with constitutional ramifications and reform options.
What is Waqf?
A Waqf signifies a significant and lasting dedication of movable or immovable property by a Muslim, designated for religious, pious, or charitable objectives as acknowledged by Islamic law as a fundamental religious practice. In Karnataka State Board of Waqf v. Mohammed Nazir, the Supreme Court determined that ‘Waqf’ and ‘Trust’ or charitable endowments exhibit certain similarities; however, they can be differentiated in significant aspects. A Waqf is inherently linked to religious principles, and the impetus for property donation is rooted in religious devotion. The institution of Waqf constitutes a fundamental aspect of Islamic practice in India, where the administration of Waqf properties is crucial. The management of these lands is closely linked to religious traditions and communal welfare, highlighting the holy duty associated with such endowments.
Restrictions on Who Can Create a Waqf?
Sections 3(ix)(a) and 3(ix)(d) of the Amendment Act have introduced a manifestly arbitrary restriction on who can create a waqf by amending the definition of ‘waqf’ and ‘waqif’ under Section 3(r) of the 1995 Act. Moreover, the contested amendment mandates that the waqif ‘demonstrate’ a minimum of five years of Islamic practice, while further entrusting a third-party authority with the assessment of an individual’s faith, which undermines Article 25. The Supreme Court ruled in Justice K.S. Puttaswamy (Retd.) v. Union of India that freedom of religion includes the right not to express one’s religious choices because liberty allows an individual to choose what and how to eat, dress, believe, and a host of other matters on which autonomy and self-determination require a choice to be made in private. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.
The limitation on the individuals authorised to establish a waqf, as stipulated by the Amendment Act, directly contradicts Sections 3 and 4 of the Muslim Personal Law (Shariat) Application Act, 1937 (‘1937 Act’), which ensures the entitlement of a Muslim fulfilling the specified criteria to the application of Muslim personal law.
The sole stipulations established in the 1937 Act are that the individual must be Muslim, possess the capacity to contract as defined by Section 11 of the Indian Contract Act, 1872, and must reside within the regions to which the 1937 Act applies. The Supreme court in Shayara Bano v. Union of India & Ors., reaffirmed that the purpose of the 1937 Act was to maintain Muslim personal law, as it has existed historically, and to acknowledge it as the ‘rule of decision’ which means that courts must apply Muslim law to Muslims in certain personal matters which is analogous to the recognition of supremacy in Article 25. The Amendment Act, by imposing a restriction alien to Muslim personal law, subverts the legislative aim of the 1937 Act and is evidently illegal. Further, a newly converted Muslim is not disqualified by Islamic law from dedicating his property to Waqf. This legislative inconsistency with the 1937 Act further raises concerns under the rule of decision principle, wherein courts are bound to apply religious personal laws in matters pertaining to them. By overriding these personal law protections, the Amendment undermines judicial precedent.
The essential religious practices doctrine, as developed in Shirur Mutt and subsequent decisions, mandates that the State cannot interfere with core tenets of religion. Waqf, as an act of piety rooted in Islamic practice, qualifies as such. Therefore, conditioning the creation of waqf on arbitrary tests of religious adherence violates judicially recognised religious autonomy. The amendment additionally mandates the demonstration that no ‘contrivance’ is involved in the dedication of the property. This also provides an ambiguous and wholly subjective basis for the government to nullify a property dedication on a ground that is not recognised in any other legislation pertaining to the endowments of any other religion.
Derecognition of ‘Waqf by User’ and Verbal Dedications
The principle of ‘waqf by user’, which means that a property is considered a waqf based solely on its long-term usage for religious or charitable purposes, even without formal documentation or a written deed, is a recognised rule of evidence in Islamic jurisprudence, consistently upheld by judicial precedent as part of Muslim personal law. In the case of Mohamad Shah v. Fasihuddin Ansari & Ors., it was held that it is a matter of inference for the court, having examined the evidence on record, to determine whether the use of the property has been for sufficiently long and consistent with the purported use to justify the recognition of a public waqf absent an express dedication. Consequently, its exclusion through the removal of Sub-Clause (i) of Section 3(r) (pursuant to Clause 3(ix)(b) of the Amendment Act) infringes upon constitutional principles, particularly Article 25 of the Constitution.
The Supreme Court in M. Siddiq v. Mahant Suresh Das confirmed that Muslim law acknowledges oral dedication and that the existence of a waqf can be legally acknowledged in circumstances where property has historically been utilised for public religious purposes, even without an explicit dedication. Consequently, the derecognition of this principle would not only endanger the status of numerous ancient waqf properties that depend on this principle for their existence but also contradict established legal precedent, including in the case of M. Sadiq v. Mahant Suresh Das. Further Section 4(ix)(b) of the Amendment Act jeopardies historic waqfs, such as mosques and dargahs, by subjecting them to encroachment and legal disputes, thereby contravening the State’s constitutional obligation under Article 25 and the Places of Worship (Special Provisions) Act, 1991, which embodies the legislative expression of the doctrine of non-retrogression as recognized by the Supreme Court, which aims to maintain the religious character of places of worship as they existed on August 15, 1947, the doctrine of non-retrogression refers to the constitutional principle that rights, once granted, should not be diluted over time and prohibits their conversion and was held to be a fundamental aspect of secularism, which constitutes a major component of the basic framework of the Constitution.
The proviso added to Section 3(r) of the 1995 Act, which stipulates that “provided that existing waqf by user properties registered on or before the commencement of the Waqf (Amendment) Act, 2025 as waqf by use will remain as waqf properties except that the property, wholly or in part, is in dispute or is a government property,” fails to resolve the issue, as it precludes reliance on waqf by user in instances where there is a dispute or the property is asserted to be government property. At first glance, this may appear to be a necessary safeguard to prevent fraudulent or contested claims. However, this effectively strips protection from precisely those properties that are most vulnerable, i.e., where their waqf status is disputed or challenged by the State. Instead of creating a neutral mechanism to adjudicate such disputes, the proviso allows the government’s assertion of ownership to override the traditional recognition of waqf by user, thereby denying communities the ability to rely on oral traditions and long-established usage. This makes the safeguard illusory: it preserves waqf by the user only in uncontested cases, while weakening protection in the very situations where judicial protection is most needed.
Further, it is crucial to acknowledge that a comparable evidentiary principle is well-established in the legal framework governing Hindu endowments, permitting properties utilised as religious endowments from time immemorial to be accepted as such, even in the absence of formal documentation. Also, in Commissioner for Hindu Religious and Charitable Endowments v. Ratnavarma Heggade, and Dasratha Rami Reddy v. Subba Rao, the Supreme Court held that the dedication of property for religious or public purposes does not necessitate a written instrument; instead, it may be deduced from time-honoured or longstanding practices, the behaviour of the parties, and other pertinent circumstances. Thus, the derecognition of ‘waqf by user’ contravenes Article 14 of the Constitution, as it unjustly affects Muslim endowments for disparate treatment, establishing an arbitrary and unwarranted division lacking a rational foundation.
The exclusion of the phrase “either verbally or” from the definition of mutawalli in Section 3(i) of the 1995 Act (via Clause 3(v) of the Amendment Act) is incongruous not only with Islamic jurisprudence, which has historically acknowledged the legitimacy of verbal contracts, oral testaments, and gifts, including the establishment of waqfs through verbal declarations, but also with established legal precedents and comparable religious endowment statutes of other faiths.
The Amendment makes three interlinked changes to the regime governing waqf creation. First, it introduces sub-section (1A) in Section 36 of the 1995 Act (via clause 18(a) of the Amendment Act), mandating that no waqf can be created without the execution of a written deed. Second, it removes sub-section (4) of Section 36 (through clause 18(c)), which had earlier permitted recognition of waqfs even in the absence of a deed. Third, it amends Section 3(r) by excluding “waqf by user” from the definition of waqf (clause 3(ix)(b)). Taken together, these modifications effectively dismantle the legal basis for acknowledging oral waqfs. This directly contravenes a principle of Islamic law, namely, the validity of oral contracts and testimonies, which was expressly recognised by the Supreme Court in M Siddiq v. Mahant Suresh Das.
The preferential treatment of similar evidentiary rules in Hindu endowments, without parallel recognition for Muslim properties, highlights discriminatory legislative drafting. No such documentation requirement exists under the Hindu Religious and Charitable Endowments Acts, making the exclusion of oral waqfs a disproportionate and community-specific burden.
Incorporation of Non – Muslims in Waqf Council and Boards
The extensive modifications to Sections 9 and 14 of the 1995 Act via Clauses 9 and 11 of the Amendment Act, which incorporate non-Muslim members into the Central Waqf Council and State Waqf Boards, compromise the autonomy of the Muslim community in administering properties designated for their religious and charitable purposes, in clear violation of Articles 14, 15, 25, and 26 of the Constitution. Article 26(d) appropriately delineates the equilibrium between a religious group’s right to manage its possessions and the State’s authority to legislate regulations governing the exercise of this right. This derives from the concept that the authority to administer does not encompass the authority to maladminister. Nonetheless, the rule must not extinguish the right itself, as held by the Supreme Court in Ratilal Panachand Gandhi v. State of Bombay.
Moreover, in Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Supreme Court established a clear criterion: although the institutions and properties of a religious denomination may be regulated, the fundamental right to administer them cannot be legislatively revoked. These revisions, by permitting the government to choose a majority of non-Muslim members, essentially deprive the Muslim community of its authority to control its own religious institutions, contravening the principles established in Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, and Article 26 of the Constitution. The establishment of a statutory board solely composed of Muslims was an effective mechanism devised by the (unamended) Waqf Act to safeguard the charitable properties of the community from mismanagement and exploitation by unscrupulous persons. Further, it fails to meet the reasonable classification test as upheld in The State of West Bengal v. Anwar Ali Sarkar, where it was held that the principle of equality before the law demands that any classification must be based on intelligible differentia and bear a rational nexus to the objective of the law. However, this amendment arbitrarily interferes with the religious affairs of the Muslim minority, while similar restrictions do not apply to non-Muslim religious institutions, thereby failing the test of fairness, reasonableness, and non-discrimination. The inclusion of non-Muslims in the religious affairs of the Muslim minority is not a step toward ‘inclusivity’. Rather, the inclusion of non-Muslims in Waqf Boards exemplifies the problem of over-inclusive classification under Article 14. A classification becomes over-inclusive when it burdens actors who are not part of the mischief sought to be addressed, while it is under-inclusive when it leaves out others similarly situated. As explained in State of Gujarat v. Ambica Mills, such overreach dilutes the legitimacy of the law. The inclusion of non-Muslims in institutions managing Muslim religious endowments does not remedy any proven mischief; rather, it extends control to those outside the community, thereby imposing burdens on a wider set of persons than is constitutionally warranted. While the rational nexus test usually affords the legislature some deference, classifications that intrude upon minority autonomy require stricter scrutiny to prevent erosion of substantive equality. Thus, beyond violating the basic structure principles of religious freedom and federalism as held in Kesavananda Bharati v. State of Kerala, the Amendment is constitutionally infirm for creating an over-inclusive classification that fails the Article 14 equality guarantee.
As reiterated in Kesavananda Bharati v. State of Kerala, religious freedom and federalism form part of the Constitution’s basic structure. These principles prohibit legislative actions that erode institutional autonomy under the guise of reform. The appointment of non-Muslims to the Central Waqf Council and State Waqf Boards disrupts the fragile constitutional equilibrium, adversely affecting the rights of Muslims as a religious group to maintain control over their waqf properties. The current wording of Sections 9 and 14 may result in a situation where non-Muslim members constitute a majority on the Central Waqf Council or the State Waqf Boards, so undermining the constitutional equilibrium between State oversight and religious autonomy. In contrast to Hindu and Sikh religious endowment laws that limit membership to followers of those faiths, these modifications signify a notable deviation, specifically targeting Muslim waqfs, thus rendering them arbitrary and discriminatory. It is essential to note that the limitation of membership in the Central Waqf Council or State Waqf Boards to Muslims is contemplated by our constitutional framework, as explicitly preserved by Article 16(5) of the Constitution, which allows for laws mandating that officeholders associated with the affairs of any religious or denominational institution, or any member of its governing body, adhere to a specific religion or denomination.
Violation of the Principle of Federalism
Under Entry 28 of the State List, “charities and charitable institutions, charitable and religious endowments, and religious institutions” lie exclusively within the States’ jurisdiction. The administration and regulation of Waqf Boards, constituted under the Waqf Act, 1995, directly pertains to religious endowments and charitable trusts, thus aligning squarely with this entry. In Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, the Supreme Court held that waqf is treated as a specialised area of law under state control.
However, the Amendment centralises control by allowing the Union Government to order waqf audits through the CAG or its own officers under Section 47. Section 108B vests exclusive rule-making in the Centre over registration, audits, and databases. Additionally, Section 23 requires that Board CEOs be of Joint Secretary rank, prescribing how Board proceedings are published is defined under Section 48(2A), and expanding mutawalli disqualification grounds is defined under Section 50A.
This, on its face, constitutes a direct encroachment upon the legislative and executive authority of States and violates Article 246(3), which reserves exclusive legislative competence over matters in the State List to the States, except under exceptional provisions such as Articles 249 or 252, which are not invoked herein. In S.R. Bommai v. Union of India, 1994, the Supreme Court categorically held that federalism forms part of the Constitution’s basic structure. The Court reiterated that the Constitution does not visualise the States as mere appendages of the Centre. This position has been reaffirmed in Jindal Stainless Ltd. v. State of Haryana, which underlined the coequal status of the Union and the States in the constitutional design. Thus, by overriding State control in the day-to-day functioning of Waqf Boards, the Amendment signals a disturbing centralising drift, an unconstitutional deviation that violates the foundational principles of Indian federalism. The Amendment’s mechanism mirrors centralising patterns observed in other statutory fields, where bureaucratic intrusion weakens local democratic functioning. This not only violates Article 246(3), but also contravenes the spirit of cooperative federalism affirmed in judgments like State of West Bengal v. Union of India.
Another core issue is the dilution of the autonomy, transparency, and democratic functioning of State Waqf Boards. The amendment vests excessive power in the District Collector,as all pending and future surveys of auqaf are to be conducted by the Collector rather than an independent Survey Commissioner and empowers the Collector to determine whether a property claimed as waqf is in fact government property, with the Waqf Board bound to alter its records accordingly, thus the a government authority will significantly undermine the representative character and independent regulatory framework of the Boards. This is compounded by changes to the process of Board constitution, curtailing community participation and replacing it with bureaucratic control. Such restructuring not only weakens the institutional integrity of the Boards but also grants undue control to the executive, which often has vested interests in properties potentially declared as Waqf or ‘Government property’. The conflict of interest is glaring, the Government is now both a party to the dispute and the adjudicator, particularly in instances where it lays claim to Waqf properties. The Amendment also introduces provisions that diminish the authority of the Waqf Tribunal, subordinating it to executive discretion. This raises further constitutional red flags, as judicial independence and access to impartial dispute resolution mechanisms are integral to the rule of law.
Conclusion
The Waqf (Amendment) Act, 2025, captures a revolutionary change of guard in regulations relating to Muslim religious endowments in India. Though this is touted to be an effort to modernise and streamline the administration of waqf, closer inspection will show that the conditions spelt out here are those that strip away constitutionally established minority rights in a very systematic way. The Amendment has been done at the expense of Articles 14, 15, 25, 26, and at the cost of federalism guaranteed in the Constitution by the introduction of restrictions on those who can establish a waqf, abolition of oral and user-based waqfs, involving non-Muslims as well as people of other religions in the composition of important religious bodies and centralizing powers by giving them off State governments which alone ought to have powers over them.
The legislation does not only pertain to an administrative reform, but it is an unjust interference with the autonomy of a religious minority. It subjects the Muslims to the discriminatory burdens which are not justified as compelling state interests and are not applied to other religious communities. Through this, it contravenes the principle of reasonable classification, contradicts the right to manage religious matters, and is a disrespect of the principle of legislation issued in the Muslim Personal Law (Shariat) Application Act, 1937.
The Amendment is an illustration of an objectionable centralising tendency which imperils the constitutional equilibrium between the national and state powers. Such a reform in the personal laws or religious governance must be made with carefulness, legal validity, and constitutional adherence. The Democratic and secular republic ideals cannot allow for compromising the rights of any community in the name of reform.
Varun is a student at the National Law University, Assam.
