The Waqf Amendment bill of 2025, introduced with the aim to bolster the governance of waqf institution by enhancing the efficiency and transparency of the institution, ignited a vibrant discussion across India's political spectrum. The bill renamed the principal act as "Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995", thereby clearing the very objective behind the introduction of the Act.

However, as is common with legislative reforms, this amendment act also introduces several complexities and challenges. The overarching centralization of administrative power into the hands of the central government and sidelining of waqf boards, along with the fundamental lacunas and procedural uncertainty, poses a serious threat to the waqf as a religious institution. "The new Act is an example of a case of legislative overreach and describes a scenario where the very architecture of a reformative act leads to an ironic frustration with its aims and an unavoidable clash with constitutional mandate.

In this article we will try to deconstruct and analyse the Amendment Act of 2025, pointing out the obstacles and significant shortcomings hampering its implementation. Additionally, we intend to evaluate whether the Act aligns with the constitutional mandate, particularly in light of the fact that Waqf is a religious institution.

What is Waqf ?
Under Islamic law, waqf is the commitment of a certain piece of property for a religious purpose or to further morals, religion, or charity. Put simply, it means the transfer of ownership of property from a person to God for the purpose of religious, charitable, or public welfare. The Waqf system has long been essential to Muslim societies, including India, and is firmly based in Islamic ideals of almsgiving and communal well-being.

Although the term Waqf is not expressly mentioned in the Quran, it embodies the philosophy of Waqf. In Surah Al-Imran, the Quran states, "You will never achieve righteousness until you donate some of what you cherish"[1]. The genesis of the authority of the Waqf has been derived from the traditions reported in Bukhari Sharif[2]. The Prophet Muhammad, while advising, suggested making the property inalienable and donating the proceeds to the charitable cause, while asking for the disposition of the property obtained in Khaybar[3]. This advice laid the groundwork for the concept of waqf, in which assets are reserved for a certain use and the money raised is used for charitable or religious purposes.

Two things which are important and need to be understood under the concept of waqf. Firstly, waqf holds the principle of Once a Waqf, Always a Waqf, i.e. the transfer will always be permanent and, secondly, the transfer is made in the name of God for pious purposes in accordance with islamic law. Now this second concept emphasises that the institution of Waqf is purely religious, and it is important to distinguish it from the concept of public trust or charity-related endowments, which, although have some similarities, do not have an essential religious character.

This view is also affirmed by the Supreme Court in the case of The Karnataka State Board Of Wakfs vs Mohamed Nazeer Ahmed and Anr[4]. Thus, A Waqf always has a strong religious connection and has a significant element of Islamic practice, making the administration of these properties a sacred responsibility. As a result, it is solely covered by the rights that Muslim minority are entitled to under Articles 25 and 26 of the Indian Constitution. The Supreme Court ruled in the seminal case of S.P. Mittal v. Union of India[5] that the freedom of religion protected by Article 25 is inextricably linked to the authority to run religious institutions.

What are the potential pitfalls and anticipated difficulties under the new Act?

1. Non-Compliance of constitutional Mandate
    
   1.  Diluting Minority Autonomy
      The ever-evolving constitution of India is a vibrant champion of minority rights, enabling minorities to establish, maintain and oversee their institutions, whether religious or linguistic, which are fundamental to their practice. This holy document has always ensured the non-interference of the state in the religious domain of the minorities. Article 25 and article 26, along with Articles 14,15 and 21, incorporate this idea. However, it doesn't mean that the state cannot interfere in it completely. The state has the power to regulate activities in the name of public order, morality, and societal welfare, keeping in view the fact that it will not interfere with the fundamental aspect of the religious objective for which the protection was given. The amendment to the Waqf Act of 1995, interferes with the management and administration of waqf, challenges the constitutional mandate, as waqf administration is not merely a secular duty but is deeply connected to the religious freedoms guaranteed under Articles 25 and 26.
      
      Article 26 of the Constitution provides: "Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
      
      1. to establish and maintain institutions for religious and charitable purposes;
      2. to manage its own affairs in matters of religion;
      3. to own and acquire movable and immovable property; and
      4. to administer such property in accordance with law.
      Clause (d) clearly gives the right to a minority community to administer their property on their own. Since waqf is a religious endowment, the administration of the same falls within the ambit of Article 26(d). Although the provision says to administer "in accordance with law", this cannot be interpreted in a narrower sense and the restrictions eroding the essential character of the institution cannot be justified. Any such operation will not only violate article 26 but also Article 25, which gives people the right to practice one's own religion.
      
      Here it is interesting to note the observation made by the court in Ratilal Panachand Gandhi v. State of Bombay[6], the Court said:
      "The administration of property by a religious denomination is a matter of religion under Article 26(b) and (d), and the State cannot interfere unless the regulation is in accordance with law and does not destroy the religious character or autonomy of the trust". In case of Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar[7], the Supreme Court recognised that the protection of property rights of religious institutions ensures that state regulation does not infringe upon the management and administration of religious properties and these institutions also have the autonomy to manage their own affairs in matters of religion.
      
      Further, by amending Sections 9 and 14 of the principal Act, the inclusion of non-Muslim members in the central and state boards is a violation of articles 26(b) and (d).
       
   2. Challenge to Constitutional Equality and Non-Discrimination
      The amendment to the Section 9 and 14 of the principal Act and the inclusion of the non muslim members in the central and state board is violative of Article 14 and 15 in addition to the violation of Article 26(b) and (d) on the ground of discrimination and non-equality on the ground of religion. No other laws relating to the religious endowments of a particular religion permits inclusion of members from other religion or faith.
      
      The Hindu Religious Institutions and Charitable Endowments Act, 1997 in its various provision relating to the management of the endowment expressly excludes people of other religion.
      
      Section 20 deals with the constitution of the advisory committee. Sub section 20(1)(c) says that non official members will be nominated by the State Government from among the religious leaders drawn from various classes of Hindu thought. Section 25 deals with the Constitution of the Committee of Management and subsection 25(3) of this mandates that the constitution of the committee or management shall be constituted from among the devotees, donors and followers of the Hindu Religious Institutions .Section 25(4)(a) says no person shall be qualified for being appointed as a member of the Committee of Management of a Notified Institution unless he has faith in God. i.e. the Hindu god. Section 25(6)(ix) says a person shall be disqualified for being appointed or continuing as a member of the Committee of Management of any notified Institution if he is not a Hindu or a Hindu converted to any other religion.
      
      The restriction under the Sikh Gurdwaras And Religious Endowment Act, 1973 is even more stringent. Section 4(iii) of the Act prohibits the nomination or election of even a patit as a member of the Board. Similarly Section 12(v) prohibits the election of patit as a member of a Prabandhak Committee. Patit means a person who being a Keshdhari Sikh, trims or shaves his beard or keshas or who after taking amrit commits any one or more of the four kurahits[8].Therefore when even a sikh is not allowed to be a part of the management, just because he is deviated, then how inclusion of non muslims into management of waqf properties would be justified.
      
      The amendment to Section 3 (iv) of the principal Act puts the conditional restriction on muslim wakif to make waqf-alal-aulad in the name of maintenance of widows, divorced women and orphans, thereby violating Article 25, Section 2 of the Shariat Act of 1937 and also of their right to property under Article 300A of the Indian constitution.
      
      Section 3 (iv) of the principal Act provides "To the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent on education, development, welfare and such other purposes as recognized by Muslim law". Now, with the amendment after the word "welfare", the words ", or maintenance of widow, divorced woman and orphan, if waqif so intends, in such a manner, as may be prescribed by the Central Government," are inserted.
      
      Meaning now a muslim waqif is restricted to making waqf-alal-aulad in the name of maintenance of a widow, divorced woman and orphan. It is to be noted here that, under Hindu personal law, a person is free to alienate his self-acquired property without any restriction. Thus, this amendment creates two propositions for two different sects in the country. Therefore, it violates Article 15 on the grounds of religious discrimination and is also contradictory to the One-Nation, One-Law policy of the government itself.
       
   3. The Five-Year Faith Clause
      Section 3(1)(r) of the parent act says "waqf" means the permanent dedication by any person of any movable or immovable property for any purpose recognized by Muslim law as pious, religious or charitable. But Section 4 (ix) of the Amendment Act introduces the words "any person showing or demonstrating that he has been practicing Islam for at least five years, of any movable or immovable property, having ownership of such property and that there is no contrivance involved in the dedication of such property," in place of words "any person, of any movable or immovable property".
      
      Thus creating a mandate for five years of practicing Islam to be eligible to make waqf. Now, since a person is considered to be embracing islam from the moment he recites Kalma i.e. taking vow to have faith in one God and showing allegiance to The Prophet(PBUH), this 5-year mandate is an irrational and unreasonable restriction on the donor. Consider a person who has converted into Islam, let's say, a year before, and wants to donate property in waqf. This restriction would be a bar on his right to practice his own religion. Thus, this added subclause is violative of Article 25 and an embargo over alienation is violative of Article 15 on the grounds of discrimination based on religion and is violative of right to property and its alienation guaranteed under Article 300A of the Indian constitution.
       
   4. Centralization of Power and Erosion of Federal Balance
      Article 246 of the Constitution of India establishes a division of legislative powers to maintain the federal structure of the country. The subject of "charities and charitable institutions, charitable and religious endowments, and religious institutions" falls under the Concurrent List in the Seventh Schedule. This means that both the central and state governments have the authority to make laws on these matters and the earlier Act of 1995 was designed as to comply the arrangement.
      
      But the Act of 2025, although enacted under Entry 28 of the concurrent list, concentrates all powers to the central government, undermining the power of the state board and the federal fabric of the constitutional setup. Furthermore, it is important to note that several subject matters, like "land", "rights on or over land"(Entry 18), "burial grounds"(Entry 10) and "pilgrimages"(Entry 10), come under the state list. Over half of waqf properties include graveyards (17%), agricultural land (16%), mosques (14%), and (iv) shops (13%)[9], leading to overlapping of the subject matter. Hence the complete sidelining of the state board might lead to the contradiction with the state subjects, an operational overreach into the state boards and a legislative imperialism.
      
      The Act of 2025 talks about centralized portal and database setup by the union government, which would be the cornerstone in the management of waqf properties. Section 4 (vi) of the Waqf (Amendment) Act, 2025, defines "portal and database" as "the waqf asset management system or any other system set by the Central Government for the registration, accounts, audit and any other details of waqf and the Board, as may be prescribed by the Central Government".
      
      Sections 36 to 43 of Chapter V of the earlier Act of 1995 gave this power of determination and registration of waqf properties to the state Waqf Board. But through the creation of the centralized portal and database, all the powers relating to registration, account and audit of wakf properties will now be undertaken by the union government, thus undermining the power of the state waqf board and the federal setup of the waqf institution.
      
      Section 5 of the parent act deals with the publication of the list of the aukaf. The new insertion of the 2A & 2B into this section mandates the state government to upload the list of the aukaf to the portal and database within 90 days, with the details of each waqf in such a manner as may be prescribed by the central government.
      Sections 21, 22 and 23 of the Waqf (Amendment) Act, 2025 amend sections 36 and 37 of the parent Waqf Act, 1995 and delete Section 40 entirely.
      
      The power of inquiry in relation to registration has been taken from the state board and given to collector under 36(7). Further, new subsection 7A to this section says "Where the Collector in his report mentions that the property, wholly or in part, is in dispute or is a government property, the waqf in relation to such part of property shall not be registered, unless the dispute is decided by a competent court". Similar power is also given under proviso to the new subsection 3C. Thus, it may create an opportunity for unscrupulous individuals to file frivolous or false claims, thereby obstructing the proper registration and administration of Waqf properties.
      
      So, after the Act of 2025, the state board will not be the principal body relating to the registration and notification of waqf properties. Instead, the real power will now be in the hands of the union government and these boards will be nothing more than data entry operators.
       
   5. Erosion of Tribal Autonomy and identity
      The constitution of India protects the traditional governance, land rights, and culture of tribal communities. Schedule 5 read with Article 244 of the Indian Constitution restricts the application of parliamentary laws to the tribal areas. Schedule 5 mandates the consultation of the Tribal Advisory Council ('TAC') by the Governors or Union Territory administrators before extending central or state laws to these areas, thereby ensuring an inclusive decision-making process. Also, this schedule is religion-neutral and is a protection for every tribal community irrespective of their religion.
      
      However, the Waqf Amendment Act of 2025 bypasses the procedural safeguard of the fifth schedule.
      
      Section 5 of the Amendment Act introduced new subsection 3E to section 3 of the Principal Act. Section 3E provides "Notwithstanding anything contained in this Act or any other law for the time being in force, no land belonging to members of Scheduled Tribes under the provisions of the Fifth Schedule or the Sixth Schedule to the Constitution shall be declared or deemed to be waqf property". That means, under the new law, muslim tribals are devoid of alienating their property to waqf. Thus, their religious identity is diminishing their rights accrued from their tribal status. The direct implementation of the 2025 Act in Scheduled Areas, without any mutual consultation with the Tribal Advisory Council (TAC), is fundamentally flawed and violates the constitutional mandate.
       
2. Omission of Waqf by User
   One of the most concerning provision of the Amendment Act of 2025 is Section 4(ix)(b) which omits the concept of waqf by user. Waqf by user refers to a situation where a property is treated as a waqf because it has been used for religious or charitable purposes over a long period, even if there hasn't been a formal, legal declaration by the owner[10]. There are two aspect which need to be understood before delving into the debate regarding omission of the Waqf by user.
   
   First, the philosophy behind this concept, the judicial recognition of this concept and its treatment as a doctrine of necessity. The idea behind the concept of this type of user is to protect the heritage structure that was donated to waqf before the enactment of any laws relating to registration and property laws. The doctrine of waqf by user received judicial recognition in the decision of the Privy Council in The Court of Wards for the property of Makhdum Hassan Bakhsh v. Ilahi Bakhsh[11].
   
   The Court said "Their Lordships agree with the Chief Court in thinking that the land in suit forms part of a graveyard set apart for the Mussulman community, and that by user, if not by dedication, the land is Waqf." In Mohd. Rustam Ali v. Mustaq Hussain[12] it was held that every Wakfnama, that is, a document creating a waqf, operates to extinguish the ownership of the waqf in the waqf property and, therefore, requires registration under Section 17(1)(b) of the Registration Act. However, where the waqf is created orally then no such registration is necessary.
   Further this view was accepted in case of Abdul Ghafoor v. Rahmat Ali[13], Justice Srivastava, speaking for the Oudh Chief Court held "It is well settled that a wakf may, in the absence of direct evidence of dedication, be established by evidence of user."
   
   In case of Waqf Masjid Hauz Wali vs Arun And Others[14] Honourable Allahabad High Court said waqf may be made in writing or by dedication which may be oral and it may also be created by a will. It can also be created by an immemorial user. If certain landed property has been used from time immemorial for a religious purpose e.g. for a mosque, or burial ground or for the maintenance of a mosque, then the land is by user waqf although there is no evidence of an express dedication.
   
   The honourable supreme court of India in landmark judgement of M Siddiq (D) The Lrs. Vs. Mahant Suresh Das & Ors.[15] (Babri Masjid Case) said "Our jurisprudence recognises the principle of waqf by user even absent an express deed of dedication or declaration. Whether or not properties are waqf property by long use is a matter of evidence. Dedication resulting in a waqf may also be reasonably inferred from the facts and circumstances of a case or from conduct of the wakif"[16].
   
   The second aspect which needs attention in relation to the waqf by user is the number of property under waqf through waqf by user. According to Waqf Asset Management system of India (WAMSI) portal maintained by the Ministry of Minority Affairs, out of total 8.73 Lakh waqf properties, 4.02 Lakh properties are waqf by user covering a total area of 22.14 lakh acres[17]. Now keeping in view all the jurisprudential evolution and large no of subject matter, this concept has been incorporated under the Amendment act of 2013.
   The omission of this concept in the new amendment act will pose potential threat to these properties. Lets have a look over some of the related changes made to understand the imminent danger.
   
   Sec 3B: This new insertion mandates the filing of the details of every waqf registered before the Act of 2025 to the centralised portal within a period of 6 Month. Further the proviso to the said subsection gives another 6 months on the satisfaction of the tribunal on the application of the mutawalli. Now though this insertion appears to be a step towards transparency but this will no doubt initiate the re-registration of the waqf properties across the country. However the real problem lies in the subclause 2 to the subsection 3B which states the mandatorily inclusion of the name and address of the creator of the waqf, mode and date of such creation and the waqf deed ,which will lead to documentary chaos because of insufficient documentation of the Waqf by user properties due to their longer existence and unknown wakif.
   
   Sec 3C: This new insertion is designed to repudiate the concept of the wakf by user and to delist the wakf property that were registered because of wakf by user.
   
   Further Section 36(10) says No suit, appeal or other legal proceeding for the enforcement of any right on behalf of any waqf which have not been registered in accordance with the provisions of this Act, shall be instituted or commenced or heard, tried or decided by any court after expiry of a period of six months from the commencement of the Waqf (Amendment) Act, 2025. Proviso to this subsection says that an application may be entertained by the court in respect of such suit, appeal or other legal proceedings after the period of six months specified under this subsection, if the applicant satisfies the court that he has sufficient cause for not making the application within such period. But the Act offers no guidance on what amounts to 'sufficient cause', thereby creating a procedural void and an opportunity for such properties to be misappropriated."
   
   These changes carry profound implications, potentially leading to the large-scale transfer of waqf properties away from the waqf institution and into government hands. Such a move would not only negate the foundational purpose of waqf but also infringe upon the constitutionally guaranteed right to religious freedom. Furthermore, dismantling this concept disregards established judicial precedents, thereby undermining the nation's legal framework and contravening the principles of natural justice and the essential principle of waqf by user based on doctrine of essentiality.
    
3. Legislative Paradox relating to Non-Muslim Donors
   Section 104 of the Parents Act says if a non-Muslim donates property to a Muslim religious or charitable place like a mosque, graveyard, or rest house, that property will be treated as part of the Waqf. It will be managed under Waqf laws just like any other Waqf property. This provision is omitted by section 43 of the amendment act of 2025. Now, on the one hand, the inclusion of non-Muslim members on the Waqf board is being justified on the grounds that Waqf properties also contain properties donated by non-Muslim members. Hence, their presence will be important for the management of the properties, while, on the other hand, the amendment act removes the provisions relating to waqf by non-Muslims. This is contradictory to the mandate of Article 300A of the Indian constitution and to the very argument behind their inclusion.
    
4. Restricting Women's Representation on the Waqf Board
   On the one hand, the government promotes initiatives for enhanced women's participation, while, on the other hand, it has restricted the appointment of female members to the waqf board.
   
   Section 14(1A) deals with the Composition of the Board and the proviso to 1A says at least two members appointed to the Board shall be women. Similarly, section 9(2) deals with the establishment and constitution of the Central Waqf Council and the proviso says at least two members appointed to the Board shall be women.
   
   Now, in the new Act, the word "at least two" has been replaced by "two" in both places by sections 10 and 12 of the Amendment Act. This omission of the word 'at least' now strictly limits the appointment of women members to exactly two only, unlike the previous setup which provides a minimum of two, thereby allowing for more.
    
5. Dilution of the penal provision
   The most remarkable change made to the principal act is the change of name of the Act. From now, it will be known as the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995. However, it will be interesting to see how the efficiency of the system is expected to be augmented by making its penal provisions less stringent. The new act, instead of making stringent provisions for the violation of the Act, proposed more lenient provisions.
   
   Section 52A(1) of the principal Act provides "Whoever alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a waqf property, without prior sanction of the Board, shall be punishable with rigorous imprisonment for a term which may extend to two years"
   In section 30 of the Amendment Act, the word "rigorous imprisonment" is substituted with the word "imprisonment", thereby reducing the punitive aspect of the punishment.

Empowerment of the Collector over Waqf Properties

The new Act has brought a significant shift in administrative powers, positioning the Collector as a key authority, undermining judicial oversight and specialized knowledge of waqf boards.
The new amendment Act, through its sections 6 and 8, modifies sections 4 and 6 respectively of the principal Act and empowers the district collector to conduct survey of the auqaf and to decide the dispute regarding whether a property is auqaf or not, in place of the survey commissioner. Further, the powers were also extended to him under sections 100 and 101. The argument behind the empowerment of the collector was to streamline the process and to ensure proper government oversight.

However, on the one hand, this will potentially turn out to be the scope of political overreach, manipulation and misuse of waqf property by reducing the autonomy of the waqf board, while, on the other hand, it will no doubt overburden the office of collector performing several administrative functions and with no specialized knowledge like waqf boards which was a community based institution. The second Administrative Reforms Commission 15th report also addresses the overburdening of the District collector and recommended a reduction in non-developmental functions.

Conclusion
The Waqf (Amendment) Act, 2025, raises serious questions about the religious nature and independence of the Waqf institution, even though some of its potentially beneficial measures, like improved transparency and the removal of finality from tribunal decisions, are welcoming. The apparent inconsistency with the principle of equality, property and the constitutional mandate of preserving minority community rights are the hurdles in the effective implementation of the Act.

The omission of "Waqf by user," increased centralization, contradictory changes to donor's eligibility and the transfer of judicial power to bureaucracy (DM) undermining judicial control and the specialized knowledge of Waqf boards were some of the problems which needed attention. The management and sanctity of Waqf, an endowment that is fundamentally religious, could be seriously impacted by these revisions.

Although the state has the authority to control activities in the name of public order, morality, and societal welfare, it must not interfere with the basic feature of the religious goal for which protection was granted. The Act, rather than attaining truly effective and empowered administration, may result in severe legal challenges and administrative disruption, jeopardizing Waqf's essential precepts and sacred obligation.

End Notes:

1. Surah Al-Imran (3:92)
2. Mulla, Principles of Mahomedan Law (20th edn) s 173, p 197.
3. Al-Bukhari, Al-Sahih, Karachi, p.282
4. AIR1982KANT309
5. (1983) 1 SCR 729 (SC)
6. 1954 SCR 1035
7. 1954 AIR 282
8. https://en.wikipedia.org/wiki/Patit
9. https://prsindia.org/billtrack/prs-products/prs-legislative-brief%201743530721#:~:text=2,Islamic%20theology%20into%20the%20Board.
10. https://pib.gov.in/PressReleasePage.aspx?PRID=2119208#:~:text=%22Waqf%20by%20user%22%20refers%20to%2 %20situation,a%20formal%2C%20legal%20declaration%20by%20the%20owner.
11. ILR (1913) 40 Cal 297
12. (1920) 47 IA 224, 42 All 609, 57 IC 329.
13. 1930 SCC OnLine Oudh CC 102
14. 1999(2)AWC1196
15. AIRONLINE 2019 SC 1420.
16. para 739, Ibid
17. https://www.minorityaffairs.gov.in/WriteReadData/RTF1984/1743661694.pdf

Written By:

• Muhammad Iftekhar Khan, 3rd year LLB (Hons.), Banaras Hindu University, iftekharkhan153@gmail.com.
• Harshkant Shukla, 3rd year LL.B. (Hons.), Faculty of Law, Banaras Hindu University, harshkant2695@gmail.com.