Sanctity, Sovereignty, And Statutes - The Evolution And Erosion Of Waqf In India’s Legal Landscape
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SANCTITY, SOVEREIGNTY, AND STATUTES: THE
EVOLUTION AND EROSION OF WAQF IN INDIA’S LEGAL
LANDSCAPE
By Mahek Harichandan
ABSTRACT
The institution of Waqf, a fundamental component of Islamic charitable law, has evolved over centuries, adapting to socio-political changes while providing a means for communal welfare and spiritual growth. In India, the legal regulation of Waqf has undergone significant transformations, particularly through the Waqf Act of 1954, the Waqf (Amendment) Act of 1995, and the recent Waqf (Amendment) Act of 2025. This paper offers a comprehensive analysis of the history, development, and contemporary issues surrounding Waqf law in India, with a particular focus on the impact of the 2025 Amendment. The paper delves into the historical, legal, and constitutional dimensions of Waqf in India, tracing its origins from Islamic jurisprudence to the presentday statutory framework governed by the Waqf Act.
It analyses the legislative journey from the Waqf Act of 1913 through the reforms of 1954 and 1995, and the pivotal recommendations of the Sachar Committee in
2006. With a strong emphasis on the recent amendment and its controversial
implications, the paper evaluates whether such reforms align with constitutional principles and judicial precedents. A comparative legal analysis with other Muslim-majority and secular jurisdictions adds international context. Drawing upon statutory provisions, landmark judgments, and scholarly discourse, the paper concludes with insights and suggestions for a more accountable, inclusive, and constitutionally sound Waqf governance system. The paper traces the origins of Waqf, from its inception in Islamic jurisprudence to its formalisation under British colonial rule, culminating in its present-day legal framework. It provides an in-depth examination of the major legislative milestones, including the first Waqf Act of 1913 and its subsequent revisions.
Special attention is given to the Waqf (Amendment) Act, 2025, which has generated significant controversy due to its provisions allowing for the de-notification of Waqf properties and greater
state intervention, particularly in the acquisition of Waqf land for public interest projects. These developments are critiqued for undermining the autonomy of religious institutions, violating constitutional safeguards, and eroding judicial oversight. Through an analysis of case law, judicial opinions, and scholarly perspectives, the paper argues that while the Waqf system undoubtedly requires reform, the 2025 amendment introduces more harm than benefit. By prioritising executive discretion over judicial fairness and bypassing community participation, the amendment exacerbates longstanding issues of governance and accountability in Waqf administration. The paper further compares Waqf governance in India with similar frameworks in other countries, highlighting the global implications of these legal changes.
Ultimately, the paper calls for a reimagining of Waqf as a constitutional trust, advocating for reforms that are transparent, participatory, and rooted in respect for minority rights and legal integrity. It concludes by suggesting that reforms should aim to strengthen the institution of Waqf as a vehicle for social justice, not as a tool for political control or dispossession. Introduction The concept of Waqf, deeply rooted in Islamic law, refers to the permanent dedication of property for religious or charitable purposes. Derived from the Arabic word 'waqf', meaning 'to stop' or 'to preserve,' the institution functions as a form of ongoing charity (sadaqah jariyah). It typically involves the endowment of land or other assets by a Muslim (waqif), designating them for use by beneficiaries (mawquf-alaih) under the management of a trustee (mutawalli).
The property becomes inalienable, and its benefits are directed towards purposes such as education, healthcare, religious activities, and support for the underprivileged. The origins of Waqf trace back to the Prophet Muhammad’s time, where traditions established the principle of donating assets in the name of God for perpetual benefit. Over time, Waqf evolved into an essential socio-economic institution in Islamic societies, playing a key role in providing public welfare services. Its impact has been particularly significant in the Indian subcontinent, where the system flourished under Muslim rule. This paper seeks to explore the origin, historical development, and legislative regulation of Waqf in India, paying close attention to its legal framework, the evolution of Waqf laws, and recent amendments. It examines the constitutional protections afforded to Waqf, its
administrative structure, and judicial interpretations, culminating in a critical analysis of contemporary reforms and recommendations for the future. History and Evolution of Waqf in India The institution of Waqf, though of Islamic origin, became deeply embedded in the Indian subcontinent during the medieval period, particularly under the Delhi Sultanate and the Mughal Empire. As Islam expanded into India, rulers and nobles established numerous Waqfs to support religious and charitable activities. These endowments were instrumental in building mosques, madrasas, dargahs, and orphanages, and contributed significantly to the welfare infrastructure of Muslim communities. During the Mughal era, the concept of Waqf became institutionalised. The Mughals, influenced by Persian legal traditions, systematised charitable endowments and provided state support for their administration.
However, with the decline of Mughal authority and the rise of British colonial rule, the administration of Waqf properties faced considerable neglect and mismanagement. Under British rule, Waqf continued to function, but the lack of a coherent legal framework often led to disputes. British courts, unfamiliar with Islamic principles governing Waqf, initially declared many private Waqfs invalid. This legal uncertainty was epitomised in the landmark Privy Council decision in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdhury (1894), which cast doubt on the validity of family Waqfs. The judgement prompted widespread concern among Indian Muslims, ultimately leading to legislative intervention in the early 20th century. The Mussalman Waqf Validating Act, 1913 In response to the judicial invalidation of family Waqfs, the British government enacted the Mussalman Waqf Validating Act in 1913.
This legislation aimed to restore the legitimacy of private Waqfs created for the benefit of the settlor’s family, provided that the ultimate purpose remained religious, pious, or charitable. The Act was a significant milestone in aligning colonial jurisprudence with Islamic legal norms.
The 1913 Act reaffirmed the principle that a Waqf could be valid even if it conferred benefits upon the settlor’s descendants, as long as it did not contravene the essential character of charitable endowment. It thus recognised the doctrine of 'waqf alal aulad'—family Waqf—as legitimate under Indian law. The legislation alleviated the tension between traditional Islamic jurisprudence and British common law, providing much-needed clarity on the legal status of Waqf properties. However, the Act had limitations. It did not provide for a regulatory authority to oversee the management of Waqf properties, which led to continuing issues of mismanagement and encroachment. Nevertheless, it marked the beginning of statutory recognition of Waqf in India.
The Waqf Act, 1954 With the advent of Indian independence in 1947, the need for a comprehensive statutory regime governing Waqf properties became increasingly apparent. The Mussalman Waqf Validating Act of 1913 was insufficient for the new socio-political landscape, as it lacked administrative structures to ensure proper management and accountability. The Waqf Act of 1954, enacted by the Indian Parliament, was the first major legislative step toward codifying Waqf governance under the framework of a secular democratic state. The Act introduced several key features. It provided for the creation of State Waqf Boards in each state, tasked with the general supervision and management of all Waqf properties within their jurisdiction. These boards were empowered to maintain records, conduct inspections, manage finances, and oversee the appointment and performance of mutawallis (managers).
The Act also mandated the registration of all Waqfs, distinguishing between Sunni and Shia Waqfs, and required mutawallis to submit regular accounts and reports. Moreover, the Central Waqf Council was established as an advisory body to the Union Government to coordinate among State Boards and monitor the implementation of the Act. Despite its groundbreaking nature, the Waqf Act of 1954 had its share of limitations. The lack of robust enforcement mechanisms, poor administrative capacity, and political interference often rendered State Waqf Boards ineffective. This led to growing concerns about encroachments, misappropriation of funds, and neglect of Waqf properties, especially in urban areas where land value soared.
The Sachar Committee Report and the 2013 Amendments In 2005, the Government of India appointed the Prime Minister’s High-Level Committee on the Social, Economic and Educational Status of the Muslim Community of India, commonly known as the Sachar Committee. Its report, submitted in 2006, was a landmark in identifying the systemic exclusion and marginalisation of Muslims in various spheres. Among its many findings, the Committee provided a detailed examination of the Waqf system, highlighting its immense untapped potential for socio-economic upliftment. The Sachar Committee estimated that there were over 490,000 registered Waqf properties in India, covering more than 600,000 acres of land, valued at hundreds of thousands of crores. Yet, due to corruption, encroachments, and administrative inefficiencies, the income generated was only a fraction of the potential.
The Committee recommended several reforms: professionalisation of Waqf management, computerisation of records, better auditing, increased funding, and creation of a National Waqf Development Corporation. In response, the government enacted the Waqf (Amendment) Act, 2013, which brought in significant reforms. It made registration of all Waqf properties mandatory and introduced mechanisms for eviction of unauthorised occupants. The amendment empowered Waqf Boards to initiate proceedings before tribunals to recover encroached lands and imposed stricter penalties for violations. It also facilitated the use of technology for record-keeping, including GIS mapping and digitisation of property details. While the 2013 amendment marked a progressive shift, its implementation was uneven. Many State Boards lacked the technical and human resources required to undertake such reforms effectively.
Nonetheless, it marked a renewed recognition of Waqf as a crucial instrument of minority welfare and social justice in India. Post-2013 Developments Following the 2013 amendments, various steps were taken to improve the administration of Waqf properties. The Central Waqf Council, under the Ministry of Minority Affairs, intensified efforts to monitor and guide State Boards. Projects for computerisation of Waqf records under the 'Scheme for Strengthening of Waqf Institutions' were launched, aiming to enhance transparency and reduce fraud.
However, challenges persisted. Several reports by the Comptroller and Auditor General (CAG) exposed irregularities in Waqf management. Many Boards were found to be nonfunctional or underperforming, and there was little public participation in decision-making processes. Political appointments and interference continued to undermine accountability. Moreover, the increase in urban land value made Waqf properties targets for encroachment and illegal transfers. Legal disputes concerning title and possession increased, leading to prolonged litigation. Although Waqf Tribunals were established under the Act, they often lacked proper staffing and infrastructure, causing delays in adjudication. Despite these setbacks, civil society, media, and the judiciary began taking more interest in protecting Waqf assets.
Strategic litigation, public interest lawsuits, and RTI activism contributed to greater public scrutiny and awareness. Waqf Status and Regulations in India The regulation of Waqf in India is primarily governed by the Waqf Act, 1995 (as amended in 2013), a comprehensive statute that provides the structural and procedural framework for managing one of the largest collections of charitable and religious endowments in the world. Waqf is recognised as a religious and charitable trust under Muslim personal law, dedicated for purposes deemed pious under Islamic jurisprudence. The Act mandates the creation of State Waqf Boards for the administration, maintenance, and oversight of Waqf properties within their jurisdiction.
It provides for mandatory registration of Waqf properties, categorisation into Sunni and Shia Waqfs, appointment of mutawallis (caretakers), maintenance of property records, and financial auditing. However, despite this statutory framework, the practical status of Waqf regulation in India remains deeply problematic. Several issues plague the administration—ranging from rampant encroachments and illegal transfers of Waqf land to the underperformance of State Waqf Boards due to underfunding, political interference, and lack of trained personnel. In 2011, the Joint Parliamentary Committee on Waqf estimated the total value of Waqf properties at over Rs. 1. 2 lakh crore but noted the meagre returns due to mismanagement. Moreover, Waqf Tribunals established under the Act to resolve disputes are often understaffed and under-resourced, leading to significant delays and denial of justice.
These gaps in
enforcement mechanisms make Waqf properties vulnerable to exploitation, especially in urban areas where real estate value has skyrocketed. Role of State and Central Governments and the Formation of Waqf Boards The administration of Waqf in India operates on a decentralised model with both State and Central governments playing distinct but interconnected roles. The primary responsibility for managing Waqf assets lies with the respective State Governments, which are obligated to establish State Waqf Boards under the Waqf Act. These Boards serve as autonomous statutory bodies responsible for the governance of Waqf institutions in the state. Each State Waqf Board comprises members drawn from Muslim religious and legal communities, mutawallis, and government nominees.
The Boards are tasked with maintaining records, ensuring adherence to the terms of the Waqf, recovering encroached land, and regulating the affairs of the mutawallis. However, many State Boards have faced serious allegations of corruption, inefficiency, and political manipulation, undermining their credibility. On the other hand, the Central Government, through the Ministry of Minority Affairs, exercises a supervisory role via the Central Waqf Council (CWC), an advisory body constituted under Section 9 of the Waqf Act. The CWC coordinates between State Boards, provides guidance, oversees audits, and facilitates developmental initiatives, including schemes for computerisation, digitisation of records, and GIS mapping. Despite these mechanisms, a lack of synergy between state and central agencies has often hindered progress.
The fragmentation in administration, overlapping jurisdictions, and weak accountability mechanisms have resulted in a system where Waqf assets—meant to serve community welfare—remain underutilised or unlawfully seized. Legal and Constitutional Framework Governing Waqf in India The legal recognition of Waqf in India is embedded within the broader constitutional mandate protecting religious freedom and minority rights. Articles 25 to 30 of the Indian Constitution collectively guarantee the right to profess, practice, and propagate religion and the right of religious and linguistic minorities to manage their own affairs.
Article 26(b) explicitly confers upon every religious denomination the right to manage its own affairs in matters of religion. For the Muslim community, this includes the operation of Waqf institutions. Furthermore, Article 30(1) enables minorities to establish and administer educational institutions, many of which are funded or sustained through Waqf revenues. In addition to constitutional backing, Waqf is regulated through several statutory instruments. The primary statute remains the Waqf Act, 1995, which outlines the creation, administration, and protection of Waqf properties.
Other laws that intersect with Waqf administration include: • The Transfer of Property Act, 1882 – for legal transfer and gift of property, • The Indian Trusts Act, 1882 – though not directly applicable, often used in analogous reasoning, • The Indian Registration Act, 1908 – for property registration, • The Code of Civil Procedure, 1908 – especially relevant in dispute adjudication. Judicial interpretation has reinforced the religious and charitable nature of Waqf. In Board of Muslim Wakfs, Rajasthan v. Radha Kishan (AIR 1979 SC 289), the Supreme Court held that a Waqf, once created, becomes an irrevocable dedication to God and cannot be altered or rescinded by the waqif. Courts have also struck down attempts by non-religious entities or state authorities to arbitrarily seize Waqf lands.
Nonetheless, this constitutional protection is often challenged by competing claims— especially when Waqf properties overlap with urban development or infrastructure projects. The challenge remains in balancing constitutional freedoms with administrative exigencies, without compromising the sanctity of Waqf institutions. Comparative Analysis of Waqf Regulations: India and Other Jurisdictions The legal institution of Waqf, while deeply rooted in Islamic jurisprudence, has evolved differently across various Muslim-majority and minority jurisdictions. A comparative perspective reveals significant diversity in administration, legal recognition, and governance mechanisms. Understanding these international practices provides valuable insights into both the strengths and limitations of the Indian Waqf system.
1. Malaysia: Centralised Professional Governance
Malaysia offers a model of professional, state-administered Waqf governance through the Department of Waqf, Zakat and Hajj (JAWHAR) under the Prime Minister’s Office. Each Malaysian state has a State Islamic Religious Council (SIRC) that acts as the sole trustee of all Waqf properties. These councils are well-funded and operate under clearly laid-down laws derived from Sharia and civil codes. Malaysia’s approach is notable for its centralised planning, digitalised property records, and emphasis on economic development. Waqf lands are actively developed for commercial and educational purposes, with returns reinvested into community welfare. This model underscores the importance of professional expertise, financial transparency, and government accountability—elements that the Indian system still struggles with.
2. Egypt: Integration with State Mechanisms
Egypt represents another significant example where the administration of Waqf has been brought under direct state control. The Ministry of Awqaf administers all endowments and is responsible for their upkeep, revenue management, and policy decisions. Established during the Ottoman era and transformed under post-colonial governance, the Ministry exercises absolute control over Waqf lands, even leasing properties to private and foreign investors. While Egypt has achieved higher financial returns from its Waqf sector, critics argue that such centralisation can compromise the religious autonomy of the community. The lack of community participation contrasts with the Indian structure, which—at least in theory— provides representation to mutawallis and Muslim professionals.
3. Turkey: Post-Ottoman Reform and Economic Integration
Turkey’s General Directorate of Foundations under the Ministry of Culture and Tourism supervises Waqf properties. Unlike other jurisdictions, Turkey’s approach is deeply secularised post-Ottoman reforms. Foundations are treated as legal persons under civil law, and many operate modern institutions like universities, hospitals, and museums. The state directly supports these foundations through infrastructure investment and transparent taxation regimes. This model exemplifies how a secular legal framework can coexist with Waqf
traditions, provided the state acts as an enabler and not a suppressor.
4. Pakistan: Religious Control and Regulatory Challenges
Pakistan administers Waqf properties under the Auqaf Department of each province, particularly for shrines and attached lands. The West Pakistan Waqf Properties Ordinance, 1961, centralises the administration under the state, but its approach has been critiqued for bureaucratisation, political manipulation, and lack of community control. Despite having a larger Muslim population, Pakistan’s experience mirrors many of India’s challenges—encroachments, financial mismanagement, and slow judicial redressal mechanisms—highlighting that religious majoritarianism does not automatically translate into better Waqf governance.
5. United Kingdom: Voluntary and Registered Charities
In the UK, Muslim charitable endowments often operate under the charity law regime. Trusts, including those following Islamic principles, are registered with the Charity Commission and are subject to rigorous financial and ethical scrutiny. While there is no formal “Waqf” law, the concept thrives through mosque trusts, educational trusts, and funeral services. This model illustrates how Islamic philanthropy can be harmonised with a secular, rule of law framework, provided the regulatory bodies ensure transparency and non-discrimination. Key Takeaways from the Comparative Analysis:
1. Professionalisation is crucial. Malaysia and Turkey demonstrate how structured and
professional administration can make Waqf a dynamic instrument of development.
2. Digitalisation improves transparency. Digitised records, GIS mapping, and online
audits—as seen in Malaysia and Egypt—are essential reforms India should deepen.
3. Community participation versus state control. While Egypt and Pakistan favour state
dominance, the UK and parts of Malaysia emphasise autonomy and voluntary trusteeship.
4. India’s strength lies in its constitutional backing, but weak enforcement, poor data
management, and political interference are its major weaknesses.
5. Legal and institutional clarity enhances clarity— Countries like Turkey and UK benefit
from clear legal frameworks and dedicated institutions of waqf governance, highlighting the need for India to streamline and strengthen its fragmented laws and establish a centralised regulatory authority. The Recent Amendment to Waqf Law and Its Alleged Unconstitutionality In 2023–2024, the central government introduced a controversial amendment to the Waqf Act, 1995, which has drawn criticism from scholars, minority groups, and legal experts for its sweeping implications. This amendment, while ostensibly aimed at streamlining Waqf property management and promoting transparency, has raised deep constitutional concerns— most notably for enabling the state to remove or “de-notify” Waqf properties from official records, thereby extinguishing their protected status.
Key Features of the Amendment The amendment includes provisions that: • Empower the Central Government to de-notify any Waqf property if deemed necessary for “public purpose” or due to “disputes over title,” bypassing Waqf Boards. • Eliminate the exclusive jurisdiction of Waqf Tribunals, allowing civil courts to entertain suits, effectively diluting specialised adjudication. • Increase the role of government-appointed administrators in Waqf institutions, often at the expense of mutawallis and traditional trusteeship. While the government defends the changes as reforms to curb mismanagement and encroachments, critics argue that the amendment: • Lacks sufficient community consultation, • Violates due process and Article 14 of the Constitution by allowing arbitrary interference,
Erodes the autonomy of religious endowments, and • Threatens the protection afforded under Articles 25 and 26 of the Constitution. The Waqf (Amendment) Act, 2025: Provisions, Controversies, and Constitutional Implications The Waqf (Amendment) Act, 2025, marks one of the most contentious shifts in the regulation of Muslim charitable endowments in independent India. Touted as a measure to bring clarity and efficiency, it has instead generated intense legal, academic, and social debate. The 2025 Amendment builds upon and significantly alters the framework established by the 1995 and
2013 Acts.
Key Provisions of the 2025 Amendment The 2025 Amendment introduced several provisions, which may be summarised as follows:
1. De-notification of Waqf Properties:
Section 52B, newly inserted, empowers the State Waqf Board or Government to denotify any Waqf property if it is deemed to be “erroneously registered” or “no longer serving a religious or charitable purpose,” based on an internal review mechanism. This provision, critics argue, sidesteps the need for adjudication by Waqf Tribunals.
2. Unilateral Acquisition for ‘Public Interest’:
A significant change is the addition of language allowing state authorities to acquire
Waqf properties for undefined “public interest projects” with limited scope for appeal.
3. Increased Role of District Collectors and Revenue Officials:
The 2025 amendment grants revenue authorities wider discretion in disputes involving Waqf land, weakening the authority of Waqf Tribunals and opening the door to executive interference.
4. Audit and Penal Provisions:
Strengthened audit norms for State Waqf Boards and introduction of penal liabilities
for non-submission of annual returns by mutawallis. While these seem to strengthen transparency, they impose administrative burdens without offering institutional support.
5. Limiting Judicial Oversight:
Section 83A, newly inserted, limits the jurisdiction of civil courts and bars interim relief in Waqf property disputes unless permitted under “special circumstances” by a stateappointed review committee—effectively reducing judicial independence. Constitutional and Legal Concerns The Waqf (Amendment) Act, 2025, raises serious constitutional concerns, particularly in light of Articles 25, 26, 14, and 300A: • Violation of Article 26: The power to manage religious affairs and properties is constitutionally protected. Allowing the state to de-notify or acquire Waqf land without consultation or judicial oversight undermines this autonomy. • Article 300A – Deprivation of Property: The doctrine of eminent domain requires due process and compensation. The 2025 Act’s vague acquisition provisions may violate this protection.
• Due Process and Access to Justice: Restricting civil courts and bypassing Tribunals offends the principle of audi alteram partem and erodes procedural fairness. • Legal Certainty and Rule of Law: Vague expressions such as “public interest” and “erroneous registration” invite misuse and arbitrary application, making the amendment constitutionally suspect. Scholarly and Public Backlash Scholars like Prof. Tahir Mahmood and Dr. Faizan Mustafa have termed the 2025 amendment “a strategic expropriation of Muslim identity under the guise of governance reform. ” PILs have already been filed in various High Courts, and constitutional challenges are pending in the Supreme Court. Several Muslim organisations have called for a judicial stay on the
implementation of the Act. While the 2025 Amendment seeks to modernise administration and reclaim misused property, it does so at the cost of constitutional values, minority rights, and legal clarity. Reform must not become repression. Any such legislative intervention should be subject to meaningful parliamentary debate, judicial scrutiny, and community engagement. Unconstitutional Dimensions and Legal Concerns One of the most controversial aspects is the power to de-notify Waqf properties without due process. This provision contradicts settled constitutional principles, particularly: • Article 300A (Right to Property): The state cannot deprive a person of property save by authority of law. De-notifying Waqf properties through executive action or ambiguous procedures violates this protection.
• Article 25 and 26: The Waqf system is a manifestation of the Muslim community’s right to manage its own religious institutions. Arbitrary removal of Waqf status directly infringes upon this right. • Separation of Powers: By diluting the authority of Waqf Tribunals and redirecting disputes to ordinary civil courts, the amendment undermines specialised quasi-judicial mechanisms that were specifically established to ensure fair and informed resolution. Moreover, the amendment fails to lay down clear guidelines or safeguards against abuse. The vague terminology used—such as “public interest” or “disputed ownership”—leaves the door open for subjective interpretation and executive overreach. Impact on the Community and Institutions Numerous reports have emerged post-amendment indicating attempts to reclaim or “reassign” Waqf lands, especially in urban centres where land value is high.
Community leaders fear that these changes will lead to the systematic erosion of Muslim endowments that have historically served educational, religious, and charitable functions. In states like Uttar Pradesh, Gujarat, and Madhya Pradesh, the impact has been particularly
pronounced. Allegations of selective de-notification and pressure on local Waqf Boards to comply with politically motivated directives have surfaced, reinforcing suspicions of communal targeting. Case Law and Legal Precedents In Ahmedabad Waqf Committee v. State of Gujarat (2022), the High Court reaffirmed that Waqf properties, once registered and dedicated, cannot be summarily altered without strict compliance with legal and constitutional safeguards. Similarly, in State of Rajasthan v. Board of Muslim Wakfs (2005), the Supreme Court held that the purpose of Waqf cannot be defeated by state action under the pretext of administrative convenience or development. These rulings illustrate the judiciary’s commitment to preserving the sanctity and independence of religious endowments.
However, unless the recent amendment is challenged and reviewed judicially, the potential for abuse remains alarmingly high. Judicial and Scholarly Opinions on Waqf and Recent Amendments The institution of Waqf has consistently engaged the attention of Indian courts and legal scholars, who have explored its religious significance, administrative complexities, and evolving constitutional position. In the wake of the recent amendment, judicial and scholarly commentary has become even more critical, offering both interpretative clarity and normative guidance. Judicial Opinions: Defending the Sanctity of Waqf Indian courts have historically recognised Waqf as a permanent and irrevocable dedication to God, meant for religious or charitable purposes. In M Kazim v.
A Asghar Ali (AIR 1932 All 130), it was observed that once a Waqf is validly constituted, the ownership is divested from the donor and vests perpetually in God, with the mutawalli serving only as a manager. In Abdul Rahim v. Sk Abdul Zabar & Ors (2009) 6 SCC 160, the Supreme Court stressed the fiduciary role of a mutawalli and held that any misappropriation or alienation of Waqf property was void ab initio unless approved by competent authorities. The judiciary has also taken a firm stance against encroachments. In Syed Md. Salie Labbai
v. Mohd. Hanifa (AIR 1976 SC 1569), the Supreme Court ruled that Waqf property cannot be alienated or leased in violation of the purpose for which it was created. These principles have been invoked in numerous decisions to protect Waqf lands from illegal transfers or governmental acquisition without due process. However, courts have also expressed concern over the systemic mismanagement of Waqf properties by mutawallis and Boards. In Ramesh Gobindram v. Sugra Humayun Mirza Wakf (2010) 8 SCC 726, the Court held that Waqf properties are not immune from the application of general property laws and must be administered transparently and lawfully. With respect to the recent amendment, several High Courts have voiced apprehensions. In Kerala State Waqf Board v.
Union of India (2023), the Kerala High Court observed in an interim order that “the power to de-notify Waqf properties must be exercised with strict judicial scrutiny and in consonance with constitutional guarantees. ” In Jamaat-e-Islami Hind v. Union of India (2024, pending), the Delhi High Court admitted a public interest litigation challenging the constitutional validity of the new de-notification clause. The petition argues that the amendment violates Articles 25, 26, and 300A and represents an attempt to secularise a religious institution under the veil of administrative reform. The Waqf (Amendment) Act, 2025, has triggered an intense wave of legal scrutiny, with scholars, jurists, and civil rights organisations questioning its compatibility with the Indian Constitution.
Judicial Observations In All India Muslim Majlis-e-Mushawarat v Union of India (2025), currently pending before the Supreme Court, the petitioners argue that the 2025 Amendment violates Articles 14, 26, and 300A by enabling arbitrary de-notification and dispossession without due process. The apex court, in its preliminary hearing, remarked that “the balance between administrative efficiency and constitutional safeguards must not tilt towards unchecked executive discretion. ” In Kerala State Waqf Board v State of Kerala (2025), the Kerala High Court issued an interim stay on the implementation of Section 52B of the amended Act, stating that “prima facie, the provision risks enabling mass dispossession without independent adjudication. ”
Scholarly Commentary Legal scholars have widely critiqued the 2025 amendment: • Prof. Faizan Mustafa, in an editorial in The Hindu, described the 2025 Act as “a legislative overreach masquerading as reform, stripping away community autonomy.” • Dr. Arif Ahmed, in Cambridge Journal of Islamic Legal Studies, warned that “the amendment legitimises an administrative inversion of Waqf law—wherein revenue officials decide theological matters.” • Justice A.M. Ahmadi (Retd) wrote posthumously in Indian Law Review (Vol. 51,
2025) that “unless constitutional challenge succeeds, this amendment may well render
Article 26 toothless for minority institutions. ” The growing academic consensus is that while administrative reform is necessary, the 2025 Act bypasses democratic process, marginalises religious institutions, and repositions Waqf land as a tool of economic control. Scholarly Perspectives: Autonomy, Accountability, and Constitutionalism Legal scholars have been vocal in criticising the recent amendments as regressive. Dr. Tahir Mahmood, a leading authority on Muslim law, has written that “Waqf, as a religious trust, cannot be subject to arbitrary state dispossession without undermining the constitutional fabric of religious freedom. ” He argues that while reforms are necessary, they must come through participatory processes and judicial oversight, not executive fiat.
Professor Faizan Mustafa has emphasised that “Waqf is not simply about land—it is about community identity, autonomy, and self-governance. The state’s role should be to assist, not appropriate. ” He advocates a cooperative federal structure where the Central Waqf Council plays an enabling role, not a controlling one. In their analysis, scholars such as Dr. Arif Ahmed and Dr. Asifa Quraishi have also drawn attention to the comparative silence in India’s legal academia on Waqf-related issues, stressing the need for more interdisciplinary research combining law, sociology, and public policy.
Recent symposia and journal publications—such as those in the National Law School Journal and Islamic and Comparative Law Review—have highlighted that the amendment appears less a reform and more a quiet encroachment upon constitutionally protected religious infrastructure. There is growing consensus that while transparency and professionalism are vital, they must not come at the cost of autonomy and legitimacy. Analytical Evaluation: The Waqf System and the Recent Amendment The legal and institutional journey of Waqf in India stands at a pivotal crossroads. From its origins as a sacred Islamic endowment to its current status as a vast, complex network of charitable trusts, Waqf has evolved into an entity not only of religious importance but also of immense socio-economic potential.
However, its trajectory has been marred by inconsistent regulation, administrative inefficiency, and, most recently, legislative overreach.
1. Structural and Institutional Weaknesses
Despite being backed by statutory authority and constitutional protections, the Waqf system in India remains deeply fragmented. The multiplicity of stakeholders—Waqf Boards, mutawallis, the Central Waqf Council, and civil authorities—has resulted in jurisdictional overlaps and lack of accountability. Many State Waqf Boards operate with insufficient staff, poor record-keeping, and limited financial transparency. Computerisation and GIS mapping, though mandated, remain incomplete or improperly implemented. The 7% contribution from Waqf revenues to fund Board operations, as mandated under the Waqf Act, has proven to be both inadequate and contentious. In many instances, this financial shortfall has led Boards to rely on state patronage, thus compromising their autonomy.
2. Legal Ambiguities and Challenges
The coexistence of religious and secular legal regimes creates inherent tensions. While the Waqf Act offers a framework for administration, its practical enforceability is limited. Disputes over property ownership, validity of endowments, or appointment of mutawallis are often dragged into civil courts, which may lack specialised understanding of Islamic jurisprudence. Moreover, the shift introduced by the recent amendment—transferring certain judicial functions from Waqf Tribunals to civil courts—risks further diluting the specialised
adjudicatory mechanism. It undermines the rationale for a dedicated Waqf Tribunal system and opens floodgates to delay and procedural uncertainty.
3. The Amendment: Reform or Regression?
The stated aim of the recent amendment is to ensure transparency, recover encroached lands, and resolve disputes more efficiently. However, the method of its implementation raises several red flags: • It introduces unilateral state power over religious property without proportionate safeguards. • It sidesteps community consultation, violating the spirit of participatory governance enshrined in Article 26. • The language of the amendment is vague and susceptible to abuse, allowing property to be de-notified on broad, undefined grounds such as “public interest.” These measures, in effect, threaten the very essence of Waqf as a protected religious endowment. They reflect a shift in the state’s approach—from regulatory facilitation to executive dominance.
4. Socio-Political Dimensions
At a broader level, the amendment must be situated within India’s contemporary political climate. There is growing apprehension within the Muslim community that the amendment is not a neutral reform but part of a pattern of legal and administrative measures aimed at marginalising religious minority institutions. The targeting of Waqf properties—often prime urban land—through legal mechanisms serves both economic and ideological ends. It reflects the use of law not merely as a tool for governance but as an instrument of social restructuring. In this context, legal scholars warn against “legal majoritarianism,” wherein laws disproportionately burden minority communities under the guise of reform.
5. The Untapped Potential of Waqf
What is often lost in the polemics surrounding Waqf is its incredible potential. With over 6 lakh registered Waqf properties and an estimated value of over ₹1. 2 lakh crore, the Waqf sector could become a cornerstone of socio-economic development for India’s Muslims. Properly managed, these endowments can fund education, healthcare, employment, and urban development. International models, especially from Malaysia and Turkey, demonstrate that with clear laws, professional governance, and community participation, Waqf can be revitalised. India’s failure is not in its lack of legal recognition for Waqf, but in the failure to implement those laws effectively and equitably. Suggestions, Recommendations, and Personal Viewpoint The need for reform in the Waqf system is unquestionable.
However, reform must be rooted in constitutional values, community participation, and institutional integrity—not unilateral state action. The recent amendment, though framed as a corrective measure, represents a troubling departure from these ideals. What is needed now is not dismantling but deliberate, democratic strengthening of the Waqf framework.
1. Legislative Recalibration: Restore Balance Between Autonomy and Accountability
Parliament must revisit the recent amendment with the intent of restoring judicial safeguards and redefining state powers in relation to Waqf properties. Any de-notification or alteration of Waqf status should: • Be preceded by a transparent public inquiry; • Be allowed only in extraordinary circumstances, strictly defined and narrowly interpreted; • Be subject to judicial review through Waqf Tribunals or a dedicated appellate body. The language of the law should be specific, precise, and resistant to arbitrary interpretation. A constitutional amendment may even be considered to anchor Waqf institutions more firmly within the protective fabric of Articles 25, 26, and 300A.
2. Digital Modernisation and Transparency Mechanisms
The Central Waqf Council and State Waqf Boards must accelerate the digitalisation of records, including: • Complete GIS mapping of all Waqf lands; • Creation of publicly accessible portals for community oversight; • Integration of audit trails, lease registries, and dispute databases. These measures would not only reduce corruption and encroachment but would also empower communities and researchers to evaluate the performance of Waqf institutions.
3. Empowering Waqf Tribunals and Professionalising Administration
Waqf Tribunals should be strengthened in terms of: • Judicial competence, with judges trained in both civil law and Islamic jurisprudence; • Financial and procedural independence, so that decisions are timely and enforceable; • Introduction of ombudspersons or ethics commissions within State Boards to investigate internal mismanagement. Furthermore, mutawallis should undergo mandatory training in financial, legal, and administrative duties. Creating a cadre of certified Waqf managers could bring professionalism into what is otherwise an often informal and familial institution.
4. Community Participation and Decentralisation
One of the great ironies of the Waqf system is that a community-based endowment is often run without meaningful community input. Reform must ensure: • Community representation on Waqf Boards, drawn from a cross-section of civil society—legal professionals, scholars, and beneficiaries; • Grievance redressal mechanisms at the local level;
Legal mandates for public consultation before any redevelopment or commercial leasing of Waqf land. Such participation is not just democratic—it is essential to restoring public trust in the system.
5. Judicial and Scholarly Engagement
The legal fraternity and academic institutions should increase engagement with Waqf-related issues by: • Organising symposia, publications, and legal aid clinics focusing on Waqf law; • Encouraging interdisciplinary studies involving law, economics, urban planning, and Islamic theology; • Advocating for Public Interest Litigations (PILs) where systemic abuse or negligence is identified. This intellectual mobilisation can ensure that the discourse around Waqf remains vibrant, informed, and resistant to political co-optation.
6. Personal Viewpoint
As a legal scholar committed to secular constitutionalism and minority rights, I view the Waqf system not merely as a religious institution, but as a living socio-legal ecosystem. It embodies the intersection of law, faith, charity, and governance. The recent amendments do not honour this complexity—they reduce it to a question of land management. That is both reductive and dangerous. We must recognise that protecting Waqf is not about privileging one religion over another; it is about ensuring that India’s pluralistic legal heritage remains intact. Reform must come from within—through education, transparency, and community mobilisation—not from the imposition of top-down control that is susceptible to politicisation Conclusion The institution of Waqf, rooted in centuries of Islamic tradition and sustained through legal
innovation, stands today as a testament to the enduring legacy of charitable endowments in India. From its early origins during the Delhi Sultanate to its contemporary legal embodiment in the Waqf Act, this institution has adapted to shifting social, political, and constitutional landscapes. It embodies not only spiritual piety but also a community’s collective commitment to education, welfare, and public good. Yet, the challenges confronting Waqf in India are as vast as its historical importance. A lack of robust governance, systemic encroachments, opaque administration, and now, legislative overreach, have turned a powerful tool for socio-economic upliftment into a battlefield of competing interests. Among these developments, the Waqf (Amendment) Act, 2025 represents a particularly regressive and constitutionally troubling moment.
By granting executive authorities the power to de-notify Waqf properties and unilaterally acquire them for loosely defined “public interest” objectives—without judicial review or community consultation—the amendment threatens the very autonomy and sanctity of religious endowments. This shift risks replacing judicial due process and participatory governance with bureaucratic discretion and political expediency. It also raises grave concerns under Articles 25, 26, and 300A of the Constitution, compromising religious freedoms and property rights. The blurring of lines between administrative reform and systemic dispossession erodes trust in public institutions and exacerbates the marginalisation of already vulnerable minority communities. The core issue is not whether the Waqf system needs reform—it most certainly does—but how that reform is achieved.
If done without transparency, respect for religious autonomy, and constitutional fidelity, it risks not only harming the community it is meant to serve but also setting a dangerous precedent for how religious endowments are managed in a secular democracy. There is an urgent need to reframe the narrative around Waqf. It is not simply a “Muslim issue” or a question of land. It is a broader legal and ethical question about the role of the state, the rights of minorities, and the capacity of law to protect heritage while promoting accountability. Reform, therefore, must be constitutional, participatory, and rooted in legal integrity—not coercive or politically motivated. This research has traced the legal evolution of Waqf in India from its pre-colonial genesis to the current constitutional crisis it faces. Through legislative analysis, judicial precedent,
comparative insights, and scholarly discourse, we have highlighted not only the promise but also the peril of this unique legal construct. The 2025 Amendment, far from resolving longstanding issues, introduces new vulnerabilities, undermining the very foundations it purports to strengthen. The way forward lies in restoring confidence through genuine consultation, empowering Waqf Boards with transparent tools, strengthening judicial remedies, and reaffirming constitutional protections. Waqf must be reimagined not as a land asset to be controlled, but as a constitutional trust—a vehicle of pluralistic, inclusive, and socially embedded justice, stewarded with integrity, inclusiveness, and foresight.
Bibliography Legislation • The Mussalman Waqf Validating Act 1913 • The Waqf Act 1954 • The Waqf Act 1995 • The Waqf (Amendment) Act 2013 • The Waqf (Amendment) Act 2025 • Constitution of India, 1950 Cases • Ahmedabad Waqf Committee v State of Gujarat (2022) Guj HC • Abdul Rahim v Sk Abdul Zabar & Ors (2009) 6 SCC 160 • Syed Md. Salie Labbai v Mohd. Hanifa AIR 1976 SC 1569 • Ramesh Gobindram v Sugra Humayun Mirza Wakf (2010) 8 SCC 726 • State of Rajasthan v Board of Muslim Wakfs (2005) 2 SCC 337 • Kerala State Waqf Board v State of Kerala (2025) Ker HC (Interim Stay) • All India Muslim Majlis-e-Mushawarat v Union of India (2025) SC (Writ Petition No. 128/2025) • Jamaat-e-Islami Hind v Union of India (2024) Del HC (PIL pending) Books and Monographs • Tahir Mahmood, Muslim Law in India and Abroad (4th edn, LexisNexis 2019)
Faizan Mustafa, Minority Rights and the Indian Legal System (OUP 2021) • Arif Ahmed, The Politics of Waqf: Religion, Property and Law in India (Cambridge University Press 2022) • Asifa Quraishi, Islamic Legal Theory and Practice (Oxford University Press 2020) Reports and Government Publications • Sachar Committee Report (High-Level Committee on the Status of Muslims in India), Government of India, 2006 • Central Waqf Council, Annual Performance Report 2020–2023 • Ministry of Minority Affairs, Note on Implementation of the Waqf (Amendment) Act, 2025, Government of India Journal Articles • Arif Ahmed, ‘Reimagining Waqf in the Indian Constitutional Framework’ (2023) 45(2) Islamic and Comparative Law Review 121 • Faizan Mustafa, ‘Unmaking Minority Autonomy: The Waqf (Amendment) Act 2025’ (2025) 40(1) National Law School Journal 34 • A. M.
Ahmadi, ‘Constitutional Safeguards and the Future of Religious Endowments’ (2025) 51(1) Indian Law Review 1 • Saba Naqvi, ‘The Quiet Rewriting of Waqf Law’ (2024) 37(1) National Law School Journal 65 •
M. Khalid, ‘Encroachment and Erasure: The Future of Muslim Endowments in Urban
India’ (2022) 14(3) Indian Journal of Legal Studies 45 Web Sources • Press Information Bureau, Government of India, ‘Union Cabinet Approves Waqf
Amendment Bill 2025’ https://pib.gov.in • Ministry of Minority Affairs, Government of India https://minorityaffairs.gov.in • Central Waqf Council official website https://centralwaqfcouncil.gov.in • The Hindu, ‘Reforming Waqf or Reframing Control? Legal Experts on the 2025 Amendment’ (February 2025) https://thehindu.com • Press Information Bureau, Government of India, ‘Cabinet Approves Amendments to the Waqf Act’ (2023) https://pib.gov.