Chief Justice Sanjiv Khanna passed on the Waqf amendment challenge proceedings case on May 5, days before retirement, leaving it to be steered by his successor, Justice B.R. Gavai. As the Supreme Court hears challenges to the Waqf (Amendment) Act, 2025 (2025 Waqf Amendment), a series of calculated attacks have emerged from the right-wing establishment and social media. From Vice President Jagdeep Dhankar to Lok Sabha member Nishikant Dubey, the attacks have been made to look like they are in response to the SC judgement in the case involving Tamil Nadu governor’s decision to hold the bills passed by the legislature for a long time.
The BJP’s reaction, though seemingly focused on the Tamil Nadu vs. Governor judgement, seemed excessive in relation to the judgment itself. While the ruling does hold weight in political terms, it does not seem to warrant the level of aggression directed at the judiciary. There are numerous options to deal with the restrictions the judgement imposes on BJP’s agenda like a review or adjustments could be pursued without needing to escalate tensions with the Court in such a dramatic manner. This suggests that the real concern is not just about the Governor’s judgment but rather about broader fears over the judiciary’s increasing influence in matters closely tied to the BJP’s ideological agenda.
When viewed alongside the ongoing challenge to the 2025 Waqf Amendment, however, the intensity of the response becomes clearer. The Waqf issue is far more central to the BJP’s ideological vision, and any judicial involvement in the matter feels far more significant to the party. In this context, the backlash against the Supreme Court over the Governor case can be seen less as a reaction to that judgment alone and more as part of a broader effort to signal the BJP’s discomfort with judicial interventions in areas it views as essential to its agenda.
To fully understand this dynamic, it’s essential to also look at the history of the Waqf Act, 1995 particularly the 2013 amendment, shaped by the Sachar Committee Report and the 2008 Joint Parliamentary Committee Report. This article will explore the context of that amendment, its shortcomings and later discuss what prompts these kinds of changes in the legal regime by majoritarian governments. A detailed look examination of the 2024/25 Amendment can be read here.
The Sachar Committee Report: Unveiling disparities and untapped potential
Commissioned by Prime Minister Manmohan Singh’s government in March 2005, the seven-member High Level Committee, chaired by Justice Rajindar Sachar, was tasked with preparing a comprehensive report on the social, economic, and educational status of the Muslim community in India. Submitted in November 2006 and tabled in Parliament shortly after, the Sachar Committee Report became a landmark document, providing stark evidence of the developmental deficits faced by Indian Muslims relative to national averages.
The Committee recommended targeted programs for skill development, credit access, and market support, particularly in backward districts and clusters where Muslim artisans were concentrated.
Crucially, the Sachar Report shone a spotlight on Waqf properties as a vast, yet profoundly underutilised, resource for potential community development. It identified over 4.9 lakh registered Waqf properties across India, encompassing an estimated 6 lakh acres of land.[1] While the book value was pegged at Rs. 6,000 crores, the Committee estimated the market value to be significantly higher, potentially around Rs. 1.2 lakh crores (in 2006). Despite this immense asset base, the annual income generated was a mere Rs. 163 crores, representing a paltry 2.7% return on the decades-old book value. The report contrasted this with the potential for generating at least Rs. 12,000 crores annually (a 10% return on estimated market value) if the properties were managed efficiently and put to marketable use.
The Committee implicitly and explicitly pointed towards significant mismanagement, widespread encroachment (including alleged unauthorised occupation by government agencies), and administrative inefficiencies as key reasons for this underperformance.[2] It recommended strengthening Waqf administration, applying laws like the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to remove encroachments, recovering rent arrears at market rates, and potentially exempting Waqf properties from certain restrictive laws (like Rent Control Acts) to unlock their potential.[3] The Sachar Report thus framed Waqf not just as a matter of religious endowment management but as a critical potential resource for addressing the very socio-economic backwardness it had documented, creating a strong impetus for reform.
The Waqf (Amendment) Act, 2013 v/s The Waqf Act, 1995: A comparative overview
A Joint Parliamentary Committee on Waqf was constituted on 2nd January 2006 by the Rajya Sabha Chairman in consultation with the Lok Sabha Speaker to assess the Waqf Act’s implementation, to suggest amendments for retrieving encroached properties, and improve the functioning of the Central Waqf Council and State Waqf Boards.
The report of the Joint Parliamentary Committee on Waqf on Amendments to the Waqf Act, 1995 presented on March 4, 2008 suggested changes to make the 1995 Act more effective, particularly in achieving the retrieval of encroached Waqf properties. This Joint Parliamentary Committee (JPC), formed in 2006, analysed numerous suggestions and proposed substantial amendments.
Key recommendations focused on tightening the Act’s framework:
- Adding clear definitions for ‘Encroacher’ and ‘Waqf Premises’;
- Mandating faster (within one year) and more frequent (every 10 years) state-funded surveys of Waqf properties, including those existing since 1947, and giving these surveys legal weight in revenue records.
- Strengthening Waqf Tribunals by expanding their composition (including a judicial chair, a civil servant, and a Muslim law expert), granting them exclusive jurisdiction over Waqf cases, and setting time limits for decisions.
- Enhancing the Central Waqf Council’s advisory role and potentially transforming it into a commission with supervisory powers.
- Restructuring State Waqf Boards with elected and nominated members and defining procedures for removing the Chairman.
- Specifying qualifications for the CEO (must be Muslim, appointed from a Board-suggested panel).
- Drastically curtailing the alienation of Waqf property by declaring sales void and allowing leases only under strict conditions.
- Significantly strengthening anti-encroachment measures by empowering the CEO with eviction powers (akin to a Collector), defining encroachment broadly, introducing hefty penalties (imprisonment and fines) for encroachers (as a cognisable offence), and penalising negligent public servants; and asserting the Waqf Act’s precedence over conflicting local revenue laws.
The JPC also suggested establishing national bodies for Waqf property development and promoting education among Muslims, leveraging surplus funds.
In pursuance of the report, an amendment was made.
Waqf (Amendment) Act, 2013
The Waqf (Amendment) Act, 2013(Amendment Act, 2013), introduced several significant changes to the Waqf Act, 1995, aiming to address issues highlighted by the Sachar Committee and other stakeholders. Here’s a comparison of key provisions altered by the 2013 amendment:
- Nomenclature and Definitions
- 1995 Act: Used the spelling “Waqf”. Definitions did not exist for term “encroacher” and a limited definition existed for “Waqf”. ((Section 3(s)2))
- 2013 Amendment: Standardised the spelling to “Waqf” throughout. It expanded the definition of “encroacher” to explicitly cover those occupying property after lease/license expiry or termination. The definition of “Waqf” was broadened to explicitly include certain communal land entries (Shamlat Patti, etc.). It also added the requirement for a mutawalli (manager) to be an Indian citizen and allowed states to set further qualifications. (Sections 2 and 5 of the Amendment Act, 2013)
- Survey of Waqf Properties
- 1995 Act: Provided for the survey of Waqf properties by a Survey Commissioner appointed by the State Government (Section 4).
- 2013 Amendment: Mandated the completion of surveys within one year if not already done, requiring the appointment of Survey Commissioners where necessary. This aimed to address the issue of incomplete or outdated property records. (Section 6 the Amendment Act, 2013)
- Protection Against Encroachment
- 1995 Act: Section 54 outlined procedures for removing encroachers, but enforcement was often seen as weak. Tribunals had powers to handle disputes.
- 2013 Amendment: Strengthened Tribunal powers to assess damages from unauthorized occupation and recover them as land revenue arrears. It also introduced penalties for public servants failing to prevent or remove encroachments. This was a direct response to the widespread encroachment problem (Sections 9 of the Amendment Act, 2013).
- Alienation of Waqf Property
- 1995 Act: Contained restrictions on alienation, requiring Board sanction for leases, sales, exchanges, or mortgages.
2013 Amendment: Imposed a stricter regime by explicitly prohibiting the sale, gift, mortgage, or exchange of Waqf property altogether. (Section 31 of the Amendment Act, 2013)
Leases were permitted but generally capped at 30 years, requiring prior Board sanction and adherence to regulations ensuring market-based rent. This aimed to prevent the permanent loss of Waqf assets. (Section 35 of the Amendment Act, 2013)
- Waqf Tribunals
- 1995 Act: Established State-level Waqf Tribunals for dispute resolution. Their decisions were indeed subject to High Court review. The composition included judicial and administrative officers, and often an expert in Muslim law.
- 2013 Amendment: Formalised the three-member structure for Tribunals: (i) a judicial officer (Chairperson), (ii) a senior state civil servant, and (iii) explicitly, a person with knowledge of Muslim law and jurisprudence. The amendment maintained the status of Tribunal decisions. (Section 43 of the Amendment Act, 2013)
- State Waqf Boards and Central Waqf Council:
- 1995 Act: Established State Waqf Boards for management and a Central Waqf Council primarily for advisory functions. Board composition varied but was predominantly Muslim.
- 2013 Amendment: Mandated the inclusion of at least two women members in each State Waqf Board. It significantly strengthened the powers of the Central Waqf Council, enabling it to issue binding directives to State Boards on performance, record maintenance, surveys, encroachment handling, and financial reporting, aiming for greater central oversight and accountability. (Sections 11 and 13 of the Amendment Act, 2013)
- Financial Accountability:
- 1995 Act: Under Section 72, the mutawalli of every waqf was supposed to pay an amount not exceeding 7% of waqf’s annual income to the Board.
- 2013 Amendment: Ensured that mutawallis can claim up to 20% for farming costs as deduction from the net annual income of which 7% was to be paid to the Board —but only if they farm the land themselves, not if it’s leased out. It also reinforced the need for regular auditing of Waqf accounts. (Section 41 of the Amendment Act, 2013)
In essence, the 2013 amendments sought to tighten controls, enhance protections, clarify definitions, and increase oversight compared to the 1995 framework, largely influenced by the issues raised in the Sachar Report.
The 2013 Amendments- An examination
The Waqf (Amendment) Act, 2013, emerged from a context demanding urgent reform. The Sachar Committee Report had laid bare not only the socio-economic challenges facing Indian Muslims but also remarked on the inefficiency in leveraging Waqf properties for community benefit. Coupled with long-standing criticisms of the 1995 Act’s implementation, including issues highlighted by Joint Parliamentary Committees (JPCs), the pressure to act was significant. K. Rahman Khan, the then Union Minister for Minority Affairs, spearheaded the legislative effort, presenting it as a product of wide consultations.
While the amendments introduced seemingly positive changes like stricter alienation rules and enhanced central oversight, they failed to address the root causes of mismanagement and underutilisation in a comprehensive manner. The focus seemed skewed towards strengthening controls and administrative structures on paper, rather than ensuring practical implementation, capacity building, and, crucially, facilitating the development potential highlighted by Sachar.
A major shortcoming was the failure to translate the Sachar Committee’s vision of Waqf as a development resource into reality. The 2013 Act lacked robust mechanisms or incentives to encourage the productive and marketable use of Waqf assets. While preventing alienation is important, simply locking up properties without facilitating their development does little to generate the income needed for education, healthcare, or skill development initiatives. The establishment of the National Waqf Development Corporation (NAWADCO) under Minister Khan’s tenure seemed promising, but its subsequent failure to gain traction shows the lack of a sustained, well-thought-out strategy for development within the 2013 framework. This suggests a superficial engagement with the Sachar report’s core economic argument, possibly rushed through without adequate planning for execution.
Furthermore, the amendments enhanced the powers of Waqf Boards and the Central Council but seemingly without sufficient attention to improving their operational capacity, transparency, or accountability on the ground. The persistence of issues like incomplete surveys years after the mandated deadline , continued widespread encroachment despite new penalties, mismanagement and corruption point to a significant gap between legislative intent and administrative reality. Empowering bodies without ensuring they have the resources, skills, and robust oversight needed for effective functioning can be counterproductive. This suggests the reforms may have been pushed through without fully considering the practical challenges of implementation across diverse state contexts.
The declaration by Minister Khan, upon the Act’s passage, that it was “perfect” seems indicative of an overestimation of the legislative changes and perhaps an underestimation of the deep-seated systemic problems. Consequently, the 2013 amendments, despite being presented as a definitive solution, ultimately proved inadequate. Their failure to effectively tackle mismanagement, unlock development potential, or ensure consistent enforcement created a vacuum. This environment of unresolved issues and perceived shortcomings – stemming perhaps from a rushed legislative process that prioritized symbolic changes over deep institutional reform – arguably paved the way for the more drastic and ill-motivated amendments proposed in 2025. The legacy of the 2013 Act is thus one of missed opportunities and incomplete reform, highlighting the pitfalls of addressing complex governance challenges with hurried legislative fixes.
Why is BJP badgering for a Waqf Reform?
Despite the hawkish stance BJP has taken consistently against institutions that could hold it accountable-from media to the Election Commission and even judiciary to an extent, it never was public with its rupture with the judiciary. It found no difficulty in arranging post-retirement plum posts for some influential judges like Chief Justice (as he was then) Ranjan Gogoi, Justice Arun Misra, Justice Abdul Nazeer etc. However, this time, it has found Waqf hearings serious enough to rake up an issue that it otherwise would not have- the scope of judicial review of the Supreme Court. This is a mighty issue and a 240 seat BJP is not cut out for it. And yet, we see how the party is willing to take its chance, especially during the Waqf Hearings. Why?
Waqf has featured in BJP’s Election manifestos for a while now. In the 1998 election manifesto, the party promised that it will protect Waqf properties from being usurped by unscrupulous individuals and help Waqf boards to develop these properties for the welfare of poor Muslim families. In the 2009 BJP’s manifesto stated that will examine the recommendations of the Joint Parliamentary Committee regarding Waqf properties, and would, in consultation with Muslim religious leaders, take steps to remove encroachments from and unauthorised occupation of waqf properties. In its 2014 manifesto, the last one which mentions Waqf, the party stated that it will empower Waqf Boards in consultation with religious leaders; taking steps to remove encroachments from and unauthorized occupation of Waqf properties. The 2019 and 2024 manifestos restricted themselves to mentioning Triple Talaq and did not have any mention of Waqf. While not giving space in the manifesto, the BJP led NDA government has given space for Waqf in its legislative agenda. This points to a deeper, ideology driven agenda.
From Locke’s labour theory of property in Two Treatises of Government to Hegel’s concept of property as the externalisation of free will in the Philosophy of Right, the Western philosophical canon has long enshrined property ownership as intrinsic to personal liberty and political agency. Liberal theorists such as John Stuart Mill and modern defenders of Rawlsian distributive justice have further situated property within the architecture of equal citizenship, whereby the capacity to hold and transfer property undergirds the social contract and democratic legitimacy. In this tradition, property is not merely a material possession but a socially sanctioned claim to recognition, status, and autonomy. Thus, the disruption of minority property rights often signals a deeper project of political unmaking and ontological negation. As Hannah Arendt articulates in The Origins of Totalitarianism, the erasure of the “right to have rights” is a revocation of a right leading to statelessness, Historically, this logic has been basis of violent projects of ethnonational purification: the Nazi regime’s Verreichlichung (Aryanization) of Jewish assets, the legal dispossession of Armenians under Ottoman decrees such as the 1915 Abandoned Properties Law show how property becomes both a terrain and instrument of racialized statecraft. Property regimes, far from being neutral or apolitical, thus emerge as critical sites where inclusion is conferred or denied.
While the Waqf Amendment, 2025 does not have the same level of intensity as the extreme laws stated above, the concerning fact is that these amendments constitute an othering of the property relations relating to charity for the Muslims. When combined with the vehemence with which the BJP has been trying to enact laws that specifically exclude or target Muslim minorities (Criminalisation of Triple Talaq, Citizenship Amendment), Waqf Amendment, 2025 is not only an opportunity missed to reform Waqf system for the better, but also a not-so-sly attempt to promote majoritarianism.
(The author is part of the legal research team of the organisation)
[1] Pg.240, Sachar Committee Report. Available at:https://minorityaffairs.gov.in/WriteReadData/RTF1984/7830578798.pdf
[2] Pg. 243, Sachar Committee Report
[3] Pg. 255, Sachar Committee Report
Related:
Waqf Amendment Act 2025: An erosion of rights under the garb of reform