Implementation Defines Waqf Reform
By Gajanan Khergamker
The passage of the Waqf (Amendment) Bill, 2025, alongside the repeal of the colonial-era Mussalman Wakf Act of 1923, marks a significant legislative recalibration in the governance of Islamic charitable endowments in India. Touted as a reformative measure aimed at transparency, inclusion, and social justice, the Bill introduces sweeping changes—including the digitisation of property records, mandatory audits, and, most contentiously, the inclusion of non-Muslims in Waqf Boards and the Central Waqf Council.
However, the Bill is already poised for a legal challenge before the Supreme Court of India, with Opposition parties branding it “unconstitutional,” “anti-Muslim,” and a veiled attempt at communal interference. The core of the argument pivots around constitutional guarantees enshrined in Articles 14, 25, and 26. The question that arises is: Will the Waqf (Amendment) Bill, 2025 survive the scrutiny of India’s highest constitutional court?
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| Critics argue this is an attempt to intrude into religious autonomy |
The jurisprudence surrounding religious endowments is well-settled. While Waqf as an institution is inherently religious, its administration of property—schools, hospitals, graveyards, orphanages—is increasingly seen by the judiciary as secular activity, susceptible to regulation by the State.
The Shirur Mutt case (1954) [(Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282)] laid the foundational distinction, asserting that while the State cannot interfere in “matters of religion,” it can legislate in areas that are “secular,” even if associated with a religious denomination. The Ismail Faruqui judgment (1994) [(Ismail Faruqui v. Union of India, AIR 1995 SC 605)] further solidified the principle that religious practices essential to faith are protected, but secular administration, even of religious property, is within the State’s domain.
Therefore, if the Supreme Court continues on this line of reasoning, Waqf administration—though religious in origin—will be treated as secular in operation, thereby permitting legislative oversight.
Article 25 assures the freedom to practise, profess, and propagate religion. Article 26 guarantees religious denominations the right to manage their own affairs in matters of religion.
The Waqf (Amendment) Bill, 2025, by allowing non-Muslims into the Waqf governance structure, challenges the very idea of a religious denomination managing its own religious and charitable affairs. Critics argue this is an intrusion into religious autonomy.
However, the government could—and likely will—argue that Waqf governance is largely property and finance-related, and the presence of non-Muslim members on boards does not infringe on the core religious practices of Islam. Should the Court concur that governance and utilisation of charitable funds do not constitute “essential religious practices,” the provision is likely to survive.
Another argument likely to be brought before the Court concerns Article 14, the right to equality. Opposition parties have raised a fair query: Why allow non-Muslims on Waqf Boards while Hindu religious boards continue to exclude non-Hindus?
While this is a legitimate political and policy concern, courts are often reluctant to strike down laws merely because parallel reforms haven’t occurred elsewhere. The reasonable classification test under Article 14 allows for targeted legislative action so long as it is based on an intelligible differentia and serves a legitimate objective.
The inclusion of non-Muslims in Waqf Boards has been termed a violation of secularism by critics. The Kesavananda Bharati case (1973) [(Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461)] held secularism to be a part of the basic structure of the Constitution. Yet, the Court has repeatedly upheld State regulation of religious institutions, provided the core tenets of faith remain untouched. In this context, the Waqf Amendment Bill, 2025 rather than breaching secularism, may be seen as reasserting it—by ensuring that religious charity serves public welfare and not vested interests.
A more subtle constitutional objection arises from the restructuring of Waqf Tribunals and the empowerment of officers above the rank of Collector to adjudicate whether government land is Waqf. Critics allege this could limit judicial oversight, lead to executive overreach, and violate the principle of separation of powers.
However, the Bill permits appeals from tribunals directly to the High Courts, preserving the judicial review mechanism. The removal of Section 40, which previously allowed Waqf Boards to unilaterally declare properties as Waqf, may in fact reduce arbitrary action—ironically undercutting the argument of state overreach.
The Bill mandates representation for Pasmanda Muslims, women, and orphans, which aligns with the Directive Principles of State Policy. These provisions will likely be viewed as affirmative measures, not infringing on religious rights, but enhancing inclusivity within the Muslim community.
The requirement for women to receive inheritance rights before property is dedicated to Waqf also plugs a long-standing legal loophole—where families were left landless due to hasty Waqf declarations.
The Waqf (Amendment) Bill, 2025, in its current form, seems constitutionally resilient, at least in terms of the legal precedents and judicial philosophy that have emerged in recent decades. By treading the delicate line between regulating secular aspects of a religious institution and avoiding interference in core religious practices, the Bill appears to be legally sound, even if politically contentious.
If challenged, the Supreme Court may issue clarifications or carve out safeguards—particularly in areas like collector-led inquiries—but a wholesale strike-down appears unlikely.
In the end, it isn’t just the law’s intent, but its implementation, that will determine whether it empowers India’s Muslim poor or becomes, as critics fear, an instrument of state control masquerading as reform.
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