Abstract
This article analyzes the key changes introduced by the recent Waqf (Amendment) Act, 2025. The Act has raised concerns over the scope of state control and the autonomy of religious institutions in India. The article tries to highlight the key controversies in the 2025 Amendment Act and the Supreme Court’s intervention. The article relies mainly on the ongoing case of In re: Waqf (Amendment) Act, 2025. [In re: Waqf (Amendment) Act, 2025 W.P.(C) No. 269/2025]
Introduction: What is ‘Waqf’ and the Waqf (Amendment) Act, 2025
In Islamic law, Waqf refers to property that is permanently dedicated in the name of God for religious or charitable purposes. The income generated from properties is used to maintain mosques, help the poor, or support educational institutions. One of the distinct features of a Waqf is that it becomes inalienable. One cannot sell, gift, or inherit it. The United Progressive Alliance (UPA) government introduced legislation to govern the administration of such properties and created State Waqf Boards. The law was the Waqf Act, 1995.
The Waqf (Amendment) Bill, 2025, was passed by the Parliament on 4 April 2025. The Bill was passed after an intensive debate during which opposition parties strongly criticised the Bill. It was claimed that the 2025 Amendment expands the Union’s control over Waqf. The Union aimed to implement a reform aimed at improving the efficiency of administering and managing Waqf properties. However, the critics argued that the reforms undermine the Muslim community’s religious autonomy by reducing them to “second-class citizens”. As a result, over 65 petitions were filed against the Act. The petitioners included Member of Parliament Asaduddin Owaisi from AIMIM, Aam Aadmi Party MLA Amanatullah Khan, Mahua Moitra of the TMC, Shia cleric Syed Jawad Naqvi, and Manoj Kumar Jha of the RJD, among others. The Supreme Court decided to hear five petitions and referred the case to a Bench comprising CJI Gavai and Justice A.G. Masih. The next section outlines the main challenges to the Waqf Act.
Key Words – Waqf, Waqf (Amendment) Act, state control, religious freedom, dilution of Muslim representation
The 2025 Amendments to the Waqf Act: Key Controversies
The Waqf (Amendment) Act, 2025, has become the centre of controversy. One side argues that it is for modern governance of the Waqf properties, and the other side argues that it aims to weaken Muslim participation in the management of the Waqf. Some of the key contentions are as stated below.
- Abolition of “Waqf by User”
The concept of “Waqf by User” refers to the properties that have been used for religious or charitable purposes over time. Such properties were recognised as waqf without any registration. The character of the Waqf was assumed due to continuous communal use. The 2025 Act does away with this concept by mandating documentation and registration of Waqfs. It declared unregistered Waqfs invalid. The Solicitor General Mehta argued that a waqf by user was a statutory right, and not a fundamental right. Since the properties were not registered for a long time, the Act tries to remedy this negligence.
On this point, Advocate Kapil Sibal argued that it endangers properties that the community has been using as mosques, graveyards, and schools for centuries. It was pointed out by Advocate Singhvi that more than half of India’s waqf properties were waqf by user. The effect of the 2025 Amendment would cause irreparable injury.
- Who Can Create a Waqf: Who is a ‘Muslim’?
The amendment in this aspect is very interesting, as nothing of such a nature exists in other spheres. The amendment to Section 3(r) requires the waqif (the person creating a waqf) to prove that they have practised Islam for at least five years. Advocate Sibal argued that this is an arbitrary and discriminatory requirement, as no other religion is subjected to such scrutiny. In my view, this can cause immense hardship to the Muslim community. How does one prove its faith? What are the factors to determine if one is a Muslim or not? These answers remain unknown.
- Dilution of Muslim Representation in Waqf Governance
The 2025 Amendment reduced Muslim representation in the Central and State Waqf Boards. Earlier, Section 9 of the Waqf Act, 1995, allowed only one non-Muslim member (ex officio Union Minister) to be part of the Central Board. Now, it allows up to 12 of the 20 members to be non-Muslim. The reasoning was that waqf boards perform secular administrative functions like auditing and not spiritual ones. Due to this, Article 26, which protects the right to manage religious institutions, does not apply here. The limit of Article 26 is over religious practices, and not secular activities. On this point, Advocate Sibal argued that this undermines the community’s right to manage its own religious affairs and that no other religion allows outsiders to oversee its endowments.
- Denotification of Waqf during a Dispute
The 2025 Amendment gives the power to the District Collector to determine whether a property is a waqf or government-owned. It states that whenever such a dispute is raised, the property will cease to be treated as waqf, and the waqif will have no immediate remedy, such as an appeal, due to Section 36 (10). It was argued that this process violates principles of natural justice as the District Collector is a government officer. Making him the judge will amount to bias. It also limits the right to appeal.
Supreme Court’s Intervention: Interim Relief
The Supreme Court refused to stay the Act as a whole on the principle that a presumption always lies in favour of the constitutionality. Keeping in mind the various contentions raised by the petitioners, the Court stayed certain provisions of the Waqf (Amendment) Act, 2025. The interim stay was granted on the provisions stated below:
- Section 3(r), which requires the waqif to prove that they have been practising Islam for at least five years. The Court agreed that there is no mechanism to determine who is a practising Muslim. Due to the absence of such a mechanism, it can lead to arbitrary use of this power.
- Parts of Section 3(c) were also stayed. The Court acknowledged that the District Collector is a government officer and that allowing them to determine the nature of property would violate the separation of powers. In my view, the Court’s direction in this aspect was particularly great as it allowed only the Waqf Tribunal and higher courts to decide. It also stated that the property title will not be affected and cannot be denotified until the final adjudication of the matter.
- The Court directed that the Central and State Waqf Councils should not consist of more than four and three non-Muslim members, respectively. This takes care of the problem of diluting Muslim’s representation.
Conclusion: Are the Interim Reliefs enough?
The ongoing debate on the Waqf (Amendment) Act, 2025, raises questions about the limits of state control over religious endowments. The Supreme Court’s stay offers relief, but it falls short of resolution. The requirement to prove one’s faith should be done away with completely. The Court merely pointed out that there exists no mechanism and stayed the provision until the Government comes up with factors to determine. Even though the Government brings a mechanism, it will remain discriminatory to Muslims, as no other religious endowments have this requirement. As to who is a Muslim, the Government or the Court cannot give a rigid formula to determine. The Court also failed to mandate that the ex officio chairperson of the Council should be from the Muslim community. It stated that the Waqf Board should “strive to ensure” that the ex officio chairperson is from a Muslim community. This direction provides weak protection to ensure representation. All of these reforms undermine the religious freedom of Muslims guaranteed under Articles 25 and 26 of the Indian Constitution. It is hoped that the Supreme Court’s final judgment brings substantial relief to the community.
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WRITTEN BY: Farzeen Zaman
