Waqf, Law, and Constitutionalism: A critical study of the 2025 Amendments

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Waqf, Law, and constitutionalism: A critical study of the 2025 amendments

Written by Aditya Narayan Dash and Riyans Raul
KIIT SCHOOL OF LAW

Table of Contents

Abstract

The recent changes and development that have occurred in the Waqf Board due to the new Waqf Amendment Act, 2025, have caused significant reforms that have become the epicenter for all the widespread debate, regarding the constitution’s validity and implications for federalism and minority rights. This paper examines three major aspects of amendment that are the abolition of the survey commissioner’s post, the removal of the “waqf by user” concept, and changes to the internal composition of the Waqf Board.

The 2025 amendment has abolished the office of the Survey Commissioner that used to be appointed by the state government for the crucial role of disputed property and ensuring accurate classification, now this role is being transfer to district collector, a central government appointee, thereby raising concerns about central encroachment on state powers, further there has been abolishment of “Waqf by user,” a doctrine recognizing long- standing religious usage as a validity for declaring waqf property. Lastly, the inclusion of non-Muslim members in the Waqf-council has created a controversy, arguing that this would be a clear violation of articles 26, 29, art 30 of the Indian constitution by undermining community autonomy.

Introduction

The term Waqf has been derived from the Islamic tradition, which means “devoting a piece of land to Allah,” for the religious welfare and charity of its community. In India, Waqf properties have held a significant socio-religious and economic resource; their administration has been formalized under a series of legislative enactments. This Activity began with the introduction of the Musselman Waqf Act of 1914, then consecutive changes were made with the Act of 1923, 1954, and 1995, and the latest amendment, which is the Waqf Amendment Act of 2025, came forward, which has become the most controversial Act among all previous acts. Central to the debate is the abolition of the Post of Survey Commissioner, “Waqf by user”, and alteration in the composition of the Waqf board is further discussed in this paper.

Brief Concept of waqf:-

Waqf means to devote a property in the name of Allah or god. In every Islamic country, there is a board to handle such properties. In India, the Waqf Board manages such properties. The concept of waqf is derived from the Hadith. It is essential to note that once a property is devoted to waqf, it becomes irrevocable. If the purpose of waqf is defeated, then the doctrine of cypress comes into play.  This doctrine says that if the main purpose is defeated for some genuine reason, then the second-best purpose should be served.

In waqf, there are 3 parties, namely:-  

1. Wakif:- Founder of waqf.

2. Mawquf alayh:- The beneficiary of the waqf.

3. Mutawalli:- The person appointed for the administration of the waqf.[1]

This paper addresses 3 main issues, namely:-

  1. Abolition of the post of survey commissioner
  2. Abolition of the concept of waqf by user
  3. Composition of the waqf board

Role and concept of survey commissioner:-

Earlier in the Waqf Act 1995, there was a post called the survey commissioner. It was appointed by the state government, and the main function of the survey commissioner was to survey the property which is in dispute. It forwards its report to the state government, and after that, the report is submitted to the Waqf Tribunal. In this report survey commissioner stated whether the land belongs to the waqf or not, and the post of survey commissioner is defined under section 4 of the Waqf Act 1995. [2] The main point to be noted is that the survey commissioner was appointed by the state government and all the expenses were taken by the state government, but now, in the current Waqf Amended Act, the post of survey commissioner was abolished.

The district collector replaces the survey commissioner. All the cases that are pending before the survey commissioner are transferred to the collector. In the current context, the district collector initiates the survey, and in case he finds that the land is government land, then he forwards his report to the state government. After receiving the report, the state government changed the revenue records. It is important to note that the district collector is appointed by U.P.S.C., which is a central government body and not a state government body.  

Earlier, the post of survey commissioner was appointed by the state government, but now the collector takes the position of survey commissioner. A collector is a post that is appointed by the central government, and it is important to note that land falls under the state list (entry 18)[3]. So this entry clearly shows that the role of the state is important in relation to waqf property, and the post of survey commissioner reflects this idea. The abolition of the post of survey commissioner and the power vested in the hands of the district collector violates the basic federal structure of India because the district collector is a central government agent, and the interference of the central government in the state list is clearly shown. This act undermines the role of the state government and empowers the central government in state-list matters.

Waqf by user concept:-

Waqf by user concept was defined under the earlier Waqf Act 1995. It means the waqf board can declare any property as a waqf based on long usage, and if there is any dispute, then the waqf tribunal handles the matter.[4] Like:- if a land is used for the purpose of a mosque or for a dargah for a long period and with no formal document, then it is known as waqf by the user. There are various old mosques which is treated as waqf property but do not have any formal document. the concept of waqf by user earlier defined under the Waqf Act 1995, but it was abolished in the new act 2025. The latest act sets some new rules and regulations for declaring a property as a waqf property like  If a person wants to declare a property as a waqf, then he needs to practice Islam for 5 years.

The abolition of the concept of waqf by the user is challenged in the Supreme Court, and argued that this legislation takes over centuries of waqf land. There are acres of land that don’t have any formal documents but are recognized as waqf property because of the long-term use of the land. it is important to note that in Uttar Pradesh, 1,12,000 properties are waqf by users out of 1,21,000, so abolition of the concept of waqf can be intended to take over the property of waqf[5]. The rules about declaring a waqf property are also illegitimate. It can be argued that if an individual wants to declare their property before they die, then do they have to wait for 5 years?[6] This provision of the new Waqf Act also violates Article 25. The conversion is itself an illegitimate provision, like:-  If a non Muslim wants to give charity in a waqf, then he first needs to convert into a Muslim and wait for 5 years, which seems to be an illogical provision. The 5-year practice of Islam also violates Article 14 because it distinguishes between practicing Islam for less than 5 years and more than 5 years without any clear rationale. Furthermore more this rule can infringe the fundamental rights of newly converted persons. [7]

Composition of Waqf Board:-

If we observe the earlier Waqf Act 1995, then section 14 of the act provides for the composition of the waqf board[8]. It is important to note that earlier in the board, there was no provision for a non-Muslim member; however, in the new act, non-Muslims can be part of the central waqf council. According to section 14 of the Waqf Act,  the board for a state shall consist of

  1. Chairperson
  2. One or more than 2 members, as the state government may think fit, to be elected from each of the electoral colleges consisting of –
  3. Muslim member from the parliament of the state
  4. Muslim member of the  state legislature 
  5. A Muslim member of the bar council from the concerned state or union territory.
  6. Mutawalli of having one lakh rupees of income per annum. 

If there is no Muslim member in the bar council, the state government may nominate any Muslim advocate from that state.[9]

It is worth noting that earlier in the Waqf Act, there was no provision for non-Muslims; however, the current Waqf Amendment Act requires the presence of at least two non-Muslims on the waqf board. The central government said that the inclusion of non Muslim will improve transparency.[10] However, the Muslim side strongly opposes this step by the government. However, there are various controversies for this amendment. Some said it violates Article 26 of the Indian Constitution.

Article 26 said:- 

Subject to public order, morality, and health, every religious denomination has the right to

  1. Establish and maintain an institution for religious and charitable purposes
  2. To manage its own affairs in matters of religion
  3. To own and acquire its property
  4. To administer such property in accordance with the law[11]

It is important to note that the word used in 26(b)[12] The matter of religion is a vast term and includes the acts done in pursuance of religion, and therefore contains a guarantee for rituals, observances, ceremonies, and modes of worship, which are regarded as an integral part of religion[13]. However, it is important to note that management of religious affairs is different from administration of property. In the case of the Management of religious affairs, it is subject to health, public order, and morality, and it is a fundamental right given under Article 26(b)[14] but the administration of the property of a religious denomination is different.

A legislature can make a law with relation to the administration of property under 26(d), but it is to be noted that while the state may regulate secular religious activity, it cannot interfere with the management of religious property or the decision-making autonomy of religious bodies unless it is justified by public order, morality, or health. It was stated in  Ratilal Panachand Gandhi vs the state of Bombay[15], and also in the case of Parvani Sridhar Rao vs Union of India, it was stated that the law which came into interference with religious denominations that law must be reasonable[16].

So the Waqf Amendment Act, which is made by the legislature and interferes with the Muslim properties and includes non Muslim members, is an unconstitutional act because it interferes with the management of waqf property and degrades the Muslim autonomy in the decision-making power.. However, it is also argued that the waqf board not only manages the property affairs but also administers the madrasa, dargah, mosque, or any other religious institution which established under waqf property, so any law which made for the administration of the waqf board can somehow interfere with the religious institution that is established in the waqf land.  The religious denomination can freely manage there religious affairs under article 26(b).[17]

The inclusion of Non -Muslim can also violate Article 29(1) and Article 30 of the Constitution.

Article 29(1) stated that:-

“Any section of the citizens of India residing in the territory of India having a distinct language, script, or culture of its own shall have the right to conserve the same.”[18]

By the inclusion of Non-Muslim in the waqf board, the autonomy of Muslim culture and tradition is significantly violated because now Non-Muslim can take part in the decision-making process of the Waqf.

Article 30 stated that:-

“All minorities, whether based on religion or Language, shall have the right to establish and administer educational institutions of their choice.”[19].

By inclusion of Non -Muslim in the matter of waqf can be an obstacle for Muslims to conserve their culture. There are various madrasas, school colleges established under waqf, and by the introduction of this bill, the educational institutions are now:-

  1. Facing some restrictions on the use of the waqf fund
  2. Administrative control is now vested in a Non- Muslim hand.
  3. They are now subject to non -non-consultative decision-making regarding encodement use[20].

This kind of consequence clearly violates Article 30 because it hampers the autonomy of an endowment of its educational institution.

Conclusion:-

There are various criticisms of the Waqf Amendment Act 2025, but every coin has 2 sides. If anyone observes the beneficial side of the Waqf Amendment Act, then it will be observed that this is the first time ever in history when the Bohra and Aghakhani communities are granted a separate board. It creates inclusivity among the Muslim community[21]. The old system represented an outdated hierarchy where the power was vested in a few, but now, with the current amendment, the waqf represents the secular idea and represents all voices of the people. Lastly, every law has its own effects; it may give advantage to some group or its effects may be disadvantageous to some group, but the validity of a law must not be determined by to whom it benefits. The validity of a law is determined by its constitutionality. In order to validate a law, it must be constitutionally valid.             

[1]Balaji, A. (2024) ‘Waqf Under Muslim Law’, Ipleder, 25 October. Available at: https://blog.ipleaders.in/concept-waqf-muslim-law/ (Accessed: 06 June 2025).

[2]  The Waqf Act,1995, section 4, No.43, Acts of Parliament,1995(India) 

[3] Constitution of India, Seventh Schedule, List II (State List), Entry 18

[4] Koundinya, N. (2023) Section 40 Waqf Act, 1995: A much-needed relook, The GCLS Blog. Available at: https://thegclsblog.wordpress.com/2023/02/14/section-40-waqf-act-1995-a-much-needed-relook/ (Accessed: 07 June 2025).

[5]HT News Desk (2024). BJP’s intent to dismantle Waqf Board Clear in amendment bill, claims Owaisi, Hindustan Times. Available at: https://www.hindustantimes.com/india-news/bjps-intent-to-dismantle-waqf-board-clear-in-amendment-bill-claims-owaisi-101727253757409.html (Accessed: 07 June 2025).

[6] Sadeeq Sherwani, Challenge to the Waqf Amendment: As SC Reserves Interim Order, a Look-Back on Three Days of Arguments, The Leaflet https://theleaflet.in/supreme-court/challenge-to-the-waqf-amendment-as-sc-reserves-interim-order-a-look-back-on-three-days-of-arguments#:~:text=Sibal%20further%20argued%20that%20including,their%20institutions%20for%20religious%20and (May 26, 2025).

[7] Manasvi Singh & Aditya Shukla, The Waqf (Amendment) Bill, 2024: A Constitutional Dilemma of Articles 26 and 14, Int’l J. of L., Research, Educ. & Soc. Sci., Vol. 1, No. 6, at [page] (Apr. 11, 2025).

[8] The Waqf Act,1995, Section 14, No.43, Act of Parliament, 1995(India)

[9] The Waqf Act,1995, Section 14, No.43, Act of Parliament, 1995(India)

[10] Press Information Bureau, The Waqf (Amendment) Bill, 2025: Benefits of the Bill, Press Release, Ministry of Minority Affairs (Jun. 20, 2025).

[11] INDIA CONST art26

[12] INDIA CONST art26 cl.2

[13] Ajmer vs Syed Hussain Ali, A.I.R 1961 S.C 1402

[14] INDIA CONST art26 cl.2

[15] Ratilal Panachand Gandhi vs State of Bombay, 1954 AIR  388.

[16] Parvani Sridhar Rao vs Union of India: A.I.R 1996 S.C 1334

[17]  INDIA CONST art26 cl.2

[18] INDIA CONSTI art 29

[19] INDIA CONSTI art 30

[20]AHMAD, T. (2025) ‘Waqf Amendment Act 2025 and its Impact on Muslim Endowments in India’, INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES, 8(2), pp. 2489–2501. doi: https://doij.org/10.10000/IJLMH.119339.

[21] Ranvijay Singh, Legal Frame Work and Constitutionalism of Wakf (Amendment) Act, 2025, Int’l J. for Rsch. Trends & Innovation (IJRTI), Vol. 10, Issue 5, at [2456-3315] (May 2025).

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