Examining centralization, minority rights under Articles 25/26, omission of 'Waqf by user', tribal autonomy, and the shifting power dynamics from Waqf Boards to the Collector — a comprehensive critique.
Under Islamic law, Waqf signifies the permanent dedication of property for religious, charitable, or pious purposes — ownership transfers to God. Rooted in Quranic principles (Surah Al-Imran 3:92) and Prophetic traditions, the institution embodies the concept "Once a Waqf, Always a Waqf". The Supreme Court in Karnataka Board of Wakfs v. Mohamed Nazeer Ahmed affirmed the essential religious character of Waqf, bringing it under the protective umbrella of Articles 25 & 26 (freedom of religion and right to manage religious affairs).
Amendments to Sections 9 & 14 allow non-Muslim members in Central/State Waqf Boards — violative of Article 26(b) & (d). Contrast Hindu & Sikh endowment laws which restrict management to members of respective faiths. This inclusion disrupts the religious administration core of Waqf.
Creation of a centralized portal & database controlled by Union Government strips State Waqf Boards of registration, audit, and inquiry powers (Sections 36-43 amended). Power shifts to Collector, overriding federal balance under Concurrent List. Over 8.73 lakh properties face administrative upheaval.
Section 4(ix) mandates a person must demonstrate practicing Islam for 5 years to create a Waqf. This irrational restriction violates Article 25 (religious practice), Article 15 (discrimination), and alienability rights under Article 300A.
Previous "at least two women" replaced by "two women" — limiting rather than expanding representation. Contradicts progressive governance claims.
Waqf by user refers to property treated as waqf through long-standing religious/charitable usage without formal deed — judicially recognized since Privy Council (1913) and affirmed in Babri Masjid case (M Siddiq). According to WAMSI portal, 4.02 lakh properties (out of 8.73 lakh) covering 22.14 lakh acres are waqf by user.
The Amendment Act omits the concept entirely (Section 4(ix)(b)). New provisions mandate re-registration with wakif details, mode, and deed — impossible for centuries-old user-based waqf. Section 3C and 36(10) create procedural traps, allowing property disputes to lapse or be transferred to government. This dismantles judicial precedents, natural justice, and risks mass dispossession of community assets.
Survey, dispute resolution, and registration powers transferred from Survey Commissioner/Board to District Collector (Sections 4,6,36). Collectors lack specialized knowledge of Muslim law & waqf traditions, leading to political overreach and administrative burden. Judicial oversight diminished.
Section 3E bars Scheduled Tribe members from dedicating land as waqf, even if Muslim. Direct implementation without mandatory Tribal Advisory Council consultation violates Article 244 & Fifth Schedule safeguards. Muslim tribals' religious rights are subordinated — discriminatory and unconstitutional.
Legislative paradox: Section 104 omitted (non-Muslim donation to waqf), yet justification for non-Muslim board members cited such donations — contradictory and violates Article 300A property rights.
The Act renames principal legislation to "Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995" but reduces penalties: Section 52A's "rigorous imprisonment" changed to simple "imprisonment", diluting deterrence against illegal waqf property alienation. Simultaneously, Waqf by user omission and strict timelines (6 months for re-registration) create procedural chaos instead of efficiency.
Restriction on Waqf-alal-aulad: New Section 3(iv) restricts waqf for widows, divorced women, orphans — only if central government prescribes manner. This impinges on Muslim personal law (Shariat Act, 1937) and violates Article 15 (religious discrimination) and Article 300A.
The Waqf (Amendment) Act 2025 presents itself as a transparency-driven reform, yet its provisions indicate legislative overreach and procedural uncertainty. By centralizing power, ignoring established waqf jurisprudence, restricting donor eligibility, and bypassing constitutional safeguards for minorities and tribals, the Act invites serious constitutional challenges. As the Supreme Court held in Ratilal Panachand Gandhi and S.P. Mittal, state intervention cannot destroy the religious character or autonomy of religious endowments. The 2025 amendments risk violating the core of Articles 25, 26, 14, and the federal structure.
Legal experts anticipate multi-jurisdictional litigation questioning the validity of the Collector’s powers, omission of waqf by user, and the five-year faith mandate. Whether the Act survives constitutional scrutiny depends on judicial commitment to minority rights and the essential religious practice doctrine. For now, the waqf landscape in India faces unprecedented uncertainty.
References: Surah Al-Imran, Bukhari Sharif; AIR 1982 Kant 309; (1983) 1 SCR 729; 1954 SCR 1035; PRS India, Ministry of Minority Affairs WAMSI data; M Siddiq v. Mahant Suresh Das (Babri Masjid). Analysis based on legal article by M. Iftekhar Khan & Harshkant Shukla, BHU.
The omission of waqf by user threatens to destabilize nearly half of all waqf properties — a jurisprudential rollback that contradicts the doctrine of necessity recognized for over a century.