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

Amendments to the Waqf Law were needed, but the grab-and-control Waqf Amendment Act, 2025 is not the answer

The AMU Teachers’ Association (AMUTA) and Waqf Worries: Ordinary members of the Qaum are caught between a self-serving elite and a majoritarian Regime

The Waqf Bill 2024: An Open Letter to the Joint Committee of Parliament, the Opposition, and India’s Muslim Communities

The post ‘Reforms’: Sachar Committee, the 2013 Amendments and the motive behind the proposed changes in the Waqf Regime appeared first on SabrangIndia.

There exists a deep communication gap even among the non-partisan (voices) on the issue of the Waqf. This needs to be bridged. Every society and religion have provisions and practices, both related to charity and public welfare. In present day India, an era of majoritarian ascendance and minority-bashing, weaponising of this welfarist institutional –even noble– practice is easy. On the other hand, huge Waqf assets and proceeds have been (unfairly) controlled and siphoned off by some among the self-serving religious and secular elites among Muslims in connivance with (sic) the state and state-regulated Waqf Boards, for decades. This duality is a double whammy for the average Muslim citizen, regardless of whether the political dispensation has been overtly anti-Muslim or ostensibly pluralist.

An instance from my ancestral village

In my own native village in rural north Bihar, there are at least three to four graveyards. The largest one is, as per documentation, owned by some families, but used for community burials by all Muslim castes (biradris) and classes of the village. Another one is owned by three specific families. In the three contiguous graveyards, each family buries its own dead in their respective spots. Yet another one, adjacent to it, belongs to the Muslim communities of Mir-Shikars, Rayeens, Mansuris (Pasmanda Muslim communities). The land is said to have been donated by a Bhumihar-Brahman– Hindu upper caste — landlord of the village, the economic status of whose descendants are reported to have dwindled very significantly. What happens then if the (2025 amended provision) of “Waqf by user” is applied to these graveyards in my native village which fall under Waqf properties, without detailed documentation. As per the just legislated law (Waqf Amendment Act 2025), the Hindu inheritors of these lands may claim their ownership (!!) and one can then imagine the socio-political fallout, particularly in an era of “everyday communalism”.

The older mosque of my ancestral village stands on a piece of land which belonged to a widow without any children. The rest of the plot of the land is home to the house of the legal inheritors of the donor, who possess their document of proprietorship. On and off, some other villagers, hostile to, or envious of, the descendant who owns the house (legal inheritor), keep claiming that the rest of the plot of the land (apart from that on which the mosque stands) too belongs to the Waqf (mosque). Thus, a dispute has been kept alive, intra-Muslim. The very same widow-donor is said to have donated another plot of her land and the produce from this other plot of land is s meant for the costs and upkeep (chiraghi, i.e, lighting) of the mosque. This has been all through oral endowments, not documented. If oral practice were not followed, the legal inheritor of the widow-donor could/can always reclaim the land. Recently, certain “pious” people of the village expressed their intent to sell away that part of the land so that a tall, 80-feet tall minar (spire) could be built! Without such an imposing minar, the identity of a newly arrived, affluent (neo-rich) Muslims cannot be displayed, a phenomenon that also creates a sense of awe (and dominance) among both Muslims and Hindus of the locality. This handful of demonstrably “pious” villagers — with pretensions to religious education and knowledge of the Shariah—choose to forget the fact that a Waqf land cannot be put to use for any purpose other than for what has been specified by the donor (Waqif). They also choose to forget the fact that in the face of the non-existence of any written documentation and the lack of registration of such details with the Waqf Board; or non-registration in a court of law to that effect, their step would/could encounter a big obstacle. Who would be the “seller” in the land-registration office? The seller, in such a scenario, has necessarily to be a legal inheritor of the land. That the newly constructed tall minar on the northern wall of the mosque (the metallic road touches the northern wall of the mosque, hence, it involves another question of legality) would (or could) attract the attention of Hindu religious processions and therefore it is (also) potentially explosive– another important issue– that I put aside at the moment. [On more than one occasion, some instances of communal conflict that revolve around the “spot” of religious structures in the past have also brewed on the misplaced priorities of local Muslim communities, who otherwise perennially complain of educational and economic backwardness).

Religiosity of the Waqf

Some academic works, for instance, Khalid Rashid (1978), Gregory Kozlowsky (1985), P. Munawar Husain (2021), etc., on the theme of Waqf, also throw up some important questions:

Is the creation and existence of Waqf strictly as per the Sharia? The Holy Quran makes no mention of awqaf or any institution similar to them. Abu Hanifa (AD 699-767 AD) “disapproved of the institution”?  Collections of the fatawa of religious scholars in India have contained both favourable and un-favourable statements on the institution of Waqf.

Waqf, in actual practice, was not necessarily and strictly either a charitable trust or a foundation of faith. Many of these, such as the Waqf-e-Aulad, were/are selfish practices too, besides of course, also being altruistic. In this specific category (Waqf-e-Aulad), the maximum proceeds of most of awqaf are theoretically and practically earmarked for the members of the family and kinship. Every Waqif (donor) wanted his or her offspring to inherit the fruits of that ingenuity of the [Waqf], to preserve the world of their founders.

The British Indian court’s approach towards following literal Quranic rules of inheritance made Muslim landholders carve out other “legal” ways of preserving the holdings by creating awqaf. Therefore, beginning in 1879, the High Courts of India handed down a series of decisions which overturned any endowment considered to benefit primarily the settler’s own family. The Privy Council in 1894 observed that Muslim endowments must be religious and “charitable”; public, not private. The Courts’ premise was: Muslims ought to follow their own Holy Scripture, Quran, to inherit parental assets.

Who were the mutawallis (managers) of the earliest Awqaf, viz., Khyber, Sawad (Iraq, which was then a part of Iran), and Ramlah in Palestine, founded in 912 AD) Waqf by Faiq, a eunuch, distinguished as having the earliest written record (on a stone tablet)? All of these three earliest awqaf (s) in Islamic history became non-existent due to encroachment by soldiers and other influential elites in the early centuries of Islam. “Military and political leaders gradually appropriated the territory’s income. Such encroachment on endowments was by no means rare. Though awqaf aimed at permanence, few attained it”. The Buwayhids, a family of Iranian, not Arab origin, had a hand in dismembering that [Sawad] endowment.

The creation of Waqf, in most cases — as observed by judges during British colonial rule –had more to do with circumventing the Quranically defined rights of inheritance and division/distribution of the properties (estates) and their proceeds among his/her heirs. Waqf-creation was a way of putting a complete restriction on sale and purchase of the assets/properties by the heirs.  “Waqf is a (unique)/typical phenomenon which partakes the characteristics of endowment, gift and many such sister concepts but, at the same time, stands apart”. “The removal of encroachments upon the Waqf properties is relegated to the executive wing rather than a judicial exercise. The appointment and removal of mutawallis is another complicated issue”.

In the early years of the 19th century, a number of persons from India’s Muslim elite began to convert their property into awqaf. This was a way to protect their family’s fortunes and the social prominence which accompanied it. In both kinds of awqaf, viz., Waqf-e-Aam (exclusively for charitable purposes) and Waqf-e-Aulad, through mutawllis (managers), self-interest could be both preserved and perpetuated.

In 1879, Sir Sayyid Ahmad Khan (when he was in the Viceroy’s legislative council) published an article in his Urdu journal, Tazhib- al-Akhlaq, titled “A plan for saving Muslim Families from destruction and extinction” (“Ek Tadbir: Mussalmanon ke Khandanon ko Tabahi awr Barbadi se Bachaane ki“). In this article, he noted, that a Waqf was “allowed”, or “permitted” (mujaz). Could this mean that while he did not outright disapprove of the practice, he was not a vocal supporter of the institution?

Sir Syed’s four important concerns were: (a) that the property placed in a Waqf be accurately and fully described. (b) his proposal insisted that, once drawn up, a waqfnamah (deed of Waqf) be registered with the district officer or the district collector or magistrate; (c) The shares of the waqf‘s income had to be precisely laid out in the Waqfnamah. (d) Also, the succession to the office of mutawalli had to be clearly established. He wanted the Muslim waqifs to introduce significant content of charity in their waqf so that the European judges may not “mis-read” it as lacking in charity.

Ameer Ali (1849-1928) however disagreed with Sir Syed; Shibli (1857-1914) in his 21-pages long essay on Waqf-e-Aulad (1908) argued that even this form of Waqf is charitable, which endorsed Ameer Ali. Shibli’s theologically premised argument was less convincing as the Waqf-e-Aulad does not promise charity for the ordinary, common Muslim. Eventually, bending under the pressure of the Muslim orthodoxy, Sir Syed was not able to propose the draft-bill in the Imperial Legislative Council.

Interesting facts about some Indian Awqaf: A Muslim woman in Bengal even allowed her deed of Waqf to begin with an invocation to the goddess Durga. In Tamil, a mutawalli preferred to be called Dharmakarta –indigenous usage not Persio-Arabic terminology. Najiban, a tawaif of Bareilly also created a Waqf. It was only when the British Indian State ran interference that the Hoogly College[1] was established out of the Waqf created by Mohd Mohsin. The deed of the Mohd Mohsin Waqf did not have such a provision. Since the period of Caliph Umar’s (the awqaf of Khyber and Sawad), the Awqaf were always under “direct” control of the state.

India’s Waqf estates (Charitable endowments) earmarked for modern education, healthcare and similar welfare activities

Mohammad Mohsin (1732-1812) of Hooghly created a Waqf. It was only with the intervention of the East India Company (colonial) state, that the Waqf established a college in 1836 (Chinsura, West Bengal), now affiliated to the Burdwan University. This College produced alumni such as Bankim Chandra Chatterjee, Muzaffar Ahmed, ABM Habibullah, and many more in various fields, including films and sports. Subsequently, with interventions of the Calcutta reformist, Abdul Latif (d. 1893), scholarships and other stipends for students were also instituted, out of the income from the Mohsin Waqf estate.

In Haryana and Kashmir, some educational institutions are also run by Waqf, though, it is unclear, how much of the running costs are contributed by the financial grants of the Waqf Boards via the provincial government’s ministries of minority affairs. This is something that needs to be brought out more clearly.

There are many Waqfs within the Aligarh Muslim University (AMU) which provided land and scholarship to students. The noted Physicist Prof Wali Mohammad (1886-1968) is one such person who created Waqf for AMU. A students’ residential Hall (with many hostels) for engineering students, has been constructed on the Waqf land donated by Professor Wali Mohammad, in the 1990s. The Hall, meant for the Engineering students, got named after Nadim Tarin, for the reasons one fails to understand. Thus, the donor (Waqif) of the land, despite being a noted Physicist, has been sadly anonymized, almost completely erased from the history of AMU and its donors. This action was not performed by any anti-Muslim political party. There are many more Waqf lands within AMU which await a transparent acknowledgement and display (of inherited ownership) on the AMU website to ensure comprehensive wider public knowledge and also, accountability. The AMU has also been losing its lands frequently and intermittently, in one or other ways.

“Muslim waqfs and endowments are an old institution but like most other assets, have been generally mismanaged… generations past have been dissatisfied with the way Muslim Waqifs and Mutawallis,… and the governments, have handled waqf properties. Islamic governments have done no better, and in India” too the British imperialist and secular republican governments have fared no better, wrote, the economist and former Vice Chancellor of AMU, A M Khusro, in his Foreword to Khalid Rashid’s book (1978). 

Contentious legislative histories of the Waqf in India

After the failed attempt of Sir Syed in 1879, Mohammad Ali Jinnah, astute politician that he was, jumped into the Waqf fray, ostensibly to protect the interests of the Muslim landed elites who needed the Waqf Validation Act of 1913. This Act, supported by the colonial state, aimed to safeguard the landed assets of these elites, who were seen as potential allies against a growing anti-colonial movement. The Swadeshi Movement, which opposed the religious-communal partition of Bengal, had forced the colonial state to annul the (Bengal) partition in 1911-192, necessitating a political arrangement to secure Muslim support. So much so that, unlike the Sir Syed’s draft (1879), Jinnah (1913) also succeeded in getting a clause added that stated that the registration of a Waqfnamah was not mandatory.

Subsequently, Jinnah enlisted more consolidated support of Muslims through the Shariat Act of 1937 which was based on the Aurangzeb era codification of Shariat, Fatawa-e-Alamgiri of the late 17^th century. Through the Shariat Act 1937-1939, he secured hugely consolidated political support of the separatist Muslim elites and soon after, he succeeded in winning Pakistan for them. Pakistan reformed Muslim Personal Laws in March 1961. Many other Muslim countries have introduced reforms but India’s Muslims continue to resist state interference not only in the issue of the un-Quranic Instant Triple Talaq but also in the AMU’s malignant governance and gross abuse of autonomy[2]

It is also not be out of place to mention here that presently India has 32 Waqf Boards, with only Bihar and UP having separate Waqf Boards for Shias and Sunnis. The Dawoodi Bohra community, historically, has shown a preference for managing their religious properties through trusts rather than under the purview of Waqf Boards. This preference stems from their unique religious governance structure, which centralises authority in the al-Dai-al-Mutlaq.

Moral weakness of building resistance and solidarity

While the “liberal” (or, less illiberal) era of the Indian republic has often been obliging of the Muslim regressive tendencies, the current majoritarian era pursues its own divisive political agenda. For instance, it has criminalised the Instant Triple Talaq (ITT) in 2019 but did not strengthen the provisions of maintenance to the divorced women. Whereas, the Supreme Court’s verdict (in the Danial Latifi case 2001) had already clarified that the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRD) does provide for maintenance, surely the 2019 Act should have further strengthened the provision? Especially since, maintenance for the divorced women is the most crucial aspect of this issue in the sphere of both equity and rights?

Such has been the political history of India’s Muslims in the 20^th century (colonial and republican eras) and their stubbornness against state intervention to any reform that they have foregone the moral strength needed to resist the Waqf Amendment Act 2025. Worse, this kind and character of Muslim politics, particularly since the 1980s, has been identified by many scholars as a contributing factor to the rise of majoritarianism in India today. Concealing the pathetic aspect of widespread mismanagement of Waqf assets for decades, will now further deplete the moral strength required to build understanding and solidarity required to resist an unwanted law.

Pertinently, the need for a satisfactory political arrangement to safeguard any monopoly on landed assets is equally applicable for Hindu Mahanths and their Mutths. The current dispensation is not concerned about these Hindu institutions which also suffer from similar ills of non-transparent mal-functioning. Unfortunately, it is also true that the institution of Mahanths and Maths remains under-explored academically by historians of Peasant and Agrarian Relations. [Prakash Jha’s film Mrityudand (1997) attempts to depict some of the degenerative aspects of the institution of Mahanth, but this was a melodramatic depiction on celluloid].

The BJP-dominated regime has no intention of introducing a similar law to reform this Hindu institution of Mahanths’ Muths. This is therefore an additional reason why Muslim communities and justice-loving people look upon the Waqf Amendment Act 2025 with alarming concern. The legislative control that it seeks to seize gives a clear impression of targeting only Muslims with this discriminatory treatment.

Specifically, there is a real apprehension that the (amended) Act –presently under challenge—will turn into a tool to harass Muslims by the sinister and wide network of local majoritarian forces and outfits in those smaller villages and mohallas where the written deeds of Waqf and mosques are not available, as is the case with the abovementioned instance from my own ancestral village. Another alarming aspect of the Act is the Places of Worship Act, 1991 falling under the Ancient Monuments Preservation Act, 1904. According to Kapil Sibal[3] , this specific aspect was also concealed from the Members of Parliament from the Opposition, right until the day it was finally debated in the two Houses of Parliament.

Many scholars also feel that Israel –in West Asia—has also played this politics of usurping available Waqf land and thereby pursuing the politics of dispossessing the Arabs by illegitimate means. Haitam Suleiman and Robert Home in their 2010 essay demonstrate that most Waqf property within Israel has been expropriated by the Israeli state under Absentee Property Laws, a sensitive and complicated issue within the Palestinian-Israeli conflict. This instance justifiably alarms India’s Muslims further, about the BJP’s intent.

Briefly, to sum up. India’s Waqf urgently need reforms in terms of actualising the maximum potential of revenue, proceeds, and its use for charitable purposes, that is, towards capacity-building for the weaker sections of the citizenry. Khalid Rashid (1978) estimated that Waqf assets actualise only a mere 3.5% of its actual promise in terms of use for charitable purposes. Waqf land need to be protected from encroachers. Waqf-loot happens with the connivance of both the state and the Muslim elite controlling the Waqf Boards.

The Act legislated in 2025 doesn’t promise any such reformatory intent not does it reflect any sincerity towards breaking this nexus (between the state and the Waqf-looting elites). Protecting the Waqf and realizing its basic objective of charity and welfare remains as elusive as ever. A more thorough and sincere implementation of the Waqf (Amendment) Act 2013 –with some amendments– would have been a more constructive step rather than legislating a new law.

Finally, it must also be notes that a large proportion of Waqf property comprises graveyards (Qabristan) which do not yield any income. A paltry section (mostly orally endowed and unregistered) Waqf assets are owned by village/Mohalla mosques (which are maintained through meagre resources or no income). These “assets” add to the quantum of property of Waqfs, but do not yield returns. This is the point that the Sachar Report (2006), which highlighted the poverty of India’s Muslim minority, failed to note. However, the Sachar Report did reveal that, “There are more than 4.9 lakh registered Wakfs [Waqf estates and assets] spread across the country but the current annual income from these properties is only about Rs.163 crores, which amounts to a meagre rate of return of 2.7 percent…. The current… market value (income to be generated out) of [these] Wakf properties can be put at Rs.1.2 lakh crore.

The present, BJP-dominated NDA-III regime, therefore, should have considered emulating Turkey whose laws of 1868 and 1924 make the Waqf institutions more robust in terms of education, healthcare, municipal and civic amenities and even in disaster relief. Politically, such an emulation may have helped the BJP outsmarting the Opposition, without creating the attendant social friction.

The author is a professor, Modern and Contemporary Indian History, Aligarh Muslim University, and author of Muslim Politics in Bihar: Changing Contours.

(This article is an expanded version of Outlook’s May 1, 2025 issue ‘Username Waqf’ where it appeared under the title, ‘A Fractured Timeline’; this is an expanded version being published at the specific request of the author, a regular columnist with Sabrangindia)

[1]  Two decades later than their first venture, the British rulers made another effort to engage Muslims in their pattern of education by taking control of the Imambada Madrasa at Hooghly run under the endowment made by Haji Mohammed Mohsin in 1806. Now it is functioning as the oldest law college in the country, named as Hooghly Mohsin College in 1937.

[2] https://www.academia.edu/127645531/UGC_Draft_Regulations_2025_Question_of_Univ_Autonomy_and_AMUs_Abuse_of_Autonomy).

[3] https://www.youtube.com/watch?v=VYQEyPP-A2M; Kapil Sibal Calls Waqf Bill Unconstitutional, Alleges Political Agenda

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Ram  and  Hanuman  in  Bengali  popular  psyche

To  come  down  to  brass  tacks,  Ram  and  Hanuman  had  always  been  butts  of  ridicule  in  Bengali  popular  sayings.  To  quote  one  –  “Kala  khelo  jato  bandor,  rajya  pelo  Ramchandar”  (Ram  acquired  the  throne  due  to  the  banana-chewing  monkeys) .   The  followers  of  Ram  are  looked  down  upon  as  exploiters  and  humbugs,  as  the  following  saying  indicates:  “ Ram  nam  mukhey,  chhuri  rekhey bukey”  (They  swear  by  the  name  of  Ram,  while  threatening  us  with  a  dagger  at  our  chests).  (Re:  Sushil  Kumar  Dey:  Bangla  Prabad).

In   Bengali  colloquial  slang,  the  name  Ram  is  often  used  in  a  derisive  and  derogatory  sense   –  like  the  term   Ram-chhagal  (a  goat  named  Ram)  to  describe  a  fat  goat.  It  is  also  used  as  a  suffix  in  terms  like  Boka-Ram  (a  foolish  Ram)  to  dismiss  someone  as  an  idiot.   The  trend  of  demystification  of  Ram  in  Bengal  reached  its  height  when  the  Bengali  poet  Madhusudan  Dutta  in  the  mid-nineteenth  century  composed  the  iconoclastic  epic  poem  Meghnad Badh  Kavya,  where  he  paid  homage  to  Ravana’s  son  Meghnad  (known  also  as  Indrajit)  who  more  than  once  defeated  Ram  and  Lakshman  in  the  battlefield  as  described  in  Valmiki’s  Ramayana.  In  his  poem,  Madhusudan  denounced  Lakshman  for  resorting  to  the  devious  mode  of  killing  Meghnad  by  sneaking  into  Nikumbhila,  the  prayer  hall  where  Meghnad  was  engaged  in  praying.  Taking  advantage  of  his  unarmed  state,  Lakshman  murdered  him.  Explaining  his  decision  to  valorize  Meghnad,  Madhusudan  in  a  letter  to  his  friend  Rajnarayan  Basu  wrote:  “I  despise  Ram  and  his  rabble,  but  the  idea  of  Ravana  elevates  and  kindles  my  imagination;  he  was  a  grand  fellow.”  (January  25,  1824).

Despite  this  tradition,   this  year,   a  Bengali  BJP  leader  managed  to  organize  a  Ram  Navami  procession  in  Kolkata  by  recruiting  the  local  unemployed  youth  –  promising  them  jobs  if  they  bring  BJP  to  power.  He  allured  them  by  repeating  Modi’s  slogan  of  `double-engine’,   meaning                 the  engine  in  the  states  can  only  function  if  they  are  aligned  to  the  central  engine  in  Delhi  run  by  the  BJP.

Homogenizing  the  diverse  Hindu  people  under  the  hegemony  of   Ram 

The  centralizing  authoritarian  Modi  government,  which  is  running  into  conflict  with  Opposition  ruled  states,  and  threatening  the  spirit  of  federalism  that  is  embedded  in  our  Constitution,  is  trying  to  justify  its  misdeeds  by  invoking  the  name  of  Ram,  playing  on  the  religious  sentiments  of  the  majority  Hindu  population.  After  attempting  to  impose  Hindi  as  a  national  language  all over  India  and  crush  linguistic  diversities,  the  Modi  government  is  now  trying  to  project  the  Hindu  god  Ram  as  a  national  icon  in  the  name  of  unifying  all  Indians  under  the  umbrella  of  nationalism.  Anyone  refusing  to  worship  Ram  and  join  Ram  Navami  processions  will  be  hauled  up  for  blasphemy.

Yet,  in  the  southern  states,  people  treat  Ram  and  Sita  and  worship  them  in  different  ways  that  are  in  stark  contrast  with  the  practices  followed  in  the  Hindu-Hindi  heartland.  The  Ramayana  that  the  Tamilians  read is  the  version  by  Kampan,   the  12^th  century  author  of  Iramavataram,  which  in  certain  sections  vastly  differ  from  Valmiki’s narrative, and puts  Sita  on  a  higher  pedestal.   Similarly,  Telegu-speaking  women  in  Andhra  Pradesh  and  Telangana  have  invented  a  Ramayana  of  their  own  by  composing  and  singing  songs  that  domesticate  the  travails  of  Sita  in  terms  of  their  own  diurnal  experiences.  In  Kerala,  the  Rama  story  is  visualized  through  puppet  plays,  which  reduce  the  size  of  the  monumental  epic  characters  to  that  of  dolls  to  be  manipulated  by  the  puppeteers  from  behind  the  scenes.  (Re:  Many  Ramayanas.  The  Diversity  of a  Narrative  Tradition in  South  Asia.  Ed. Paula  Richman.  OUP.  New  Delhi.  1992)

Given  these  diverse  interpretations  of  Ramayana, and  the  different  understanding  of  Ram  and  Sita   in  popular  perception,  varying  from  one  region  to  another,  the  Modi  government’s  attempt  to  impose  Ram  as  a  hegemonizing  icon  on  all  Hindus  cannot  work.  Further,  his  determination  to    elevate  Ram  as  a  Hindi-speaking  god  is  alienating  the  Hindus  of  the  southern  states.  Their  chief  ministers  are  protesting  against  the  infliction  of   Hindi  on  their  official  correspondence.

Positioning  Ram  and  Hanuman  against  Muslims,  depicted  as  present  followers  of  Ravana.

The  state-sponsored  elevation  of  Ram  through  ceremonies  like  Ram  Navami  are  aimed  at  unifying  these  diverse  and  often  mutually  conflicting  sections  of  the  Hindu  population.  But  such  ceremonies  are  also  becoming  tools  in  the  hands  of  the  Hindu  fanatical  outfits  like  Vishva  Hindu  Parishad  and  Bajrang Dal  who  deliberately  organize  demonstrations in  front  of  mosques,  shouting  slogans   insulting  the   Muslim worshippers  there.  Shops  run  by  Muslims  are  being  forcibly  closed down  by  the  goons  of  these  outfits  during  Hindu  religious  festivals.  Muslim  pedestrians  are  being  harassed  by  these  goons  who  force  them  to  shout  `Jai  Shri  Ram.’

Defending  the  weaponization  of  Ram  Navami  by  the  Sangh  Parivar,  a  BJP  leader  from  West  Bengal, Dilip  Ghosh  while  recently  addressing  a public  rally  in  the  North  24-Parganas  district  there  proudly  claimed:  “Ten  years  ago,  people  didn’t  know  what  Ram  Navami  processions  were.  Today,  such  processions  are  being  held  in  every  locality  because  Hindus  have  realized  they  need  to  unite.”  He  then  advised  Hindus  to  keep weapons  at  home  for  self- protection.  (Re:  Times  of  India.  April  18,  2025).   By  admitting  that  ten  years  ago  Bengalis  didn’t  know  what  Ram  Navami  processions  were,  he  acknowledges  that  it  is  a  newly  imported  festival  under  the  auspices  of  the  BJP.  Not  satisfied  with  imposing  Ram  Navami  as  a  national  ceremony  on  all  the  diverse  sections  of  our   people,  the  Sangh  Parivar  is  now  demanding  that  privilege  for  Ram’s  army  general,  the  monkey-god  Hanuman.  Hanuman  Jayanti  was  celebrated  on  a  massive  scale  this  year  in  BJP-ruled  states,  where  the  governments  spent  money  from  their  exchequer  to  subsidize  these  celebrations.  It  is  necessary  to  remind  our  people  that  this  money  is  being  diverted  from   the    taxes  that  they  pay  which are  accumulated  in  the  exchequer.  Do  all  the  tax-payers,  coming  from  different  religious  denominations,   want  their  taxes  to  subsidize  the  religious  ceremonies  of  a  single  community,  the  majoritarian  Hindus  ?

Agitation  against  the  Waqf (Amendment)  Act  –  considered  as  Na-pak  by  Muslims

The  enactment  of  the  Waqf  (Amendment)  Act  has  become  the  proverbial  last  straw  on  the  camel’s  back.  The  Muslim  community  could  not  bear  it  any  more  and  they  have  come  out  in  the  legislature  as  well  as  in the  streets  to  voice  their  protest.  The  Act  is  a  controversial  piece  of  legislation.  Some Muslim  organizations  have  expressed  apprehensions  that  it  would  curb  the    Waqf  board’s  power  to  distribute  charity, and  its  control  over  its  properties.   Some  other  Muslim  groups  have  reserved  their  opinions.

The  opposition  to  the  Act  took  a  violent  communal  shape  in  the  Murshidabad  district  of  the  Trinamul-ruled  state  of  West  Bengal.  Islamist  fanatical  groups  (Muslim  counterparts  of  the  Hindu  fanatical  Bajrang  Dal  and  Vishwa  Hindu  Parishad)  attacked  Hindu  homes  and  killed  a  father  and  son  duo.  They  alleged  that  stones  were  thrown  on  their  anti-Waqft  demonstration  by  this  Hindu  family.  A   Muslim  man  has  been  accused  and arrested  in  this  connection.  At  around  the  same  time,  a  Muslim  youth  was  killed  by  police  bullets.  There  are  unconfirmed  reports  that  Islamic  terrorists  from  Bangladesh  have  infiltrated  into  Bengal  after  the  present  Yunus-led  caretaker  government  (which  is  anti-India  and  has  lifted  ban  on  Islamic  fundamentalist  organizations  and  allowed  them  to  cross  over  to  Bengal  to  create  unrest). Yet,  if  we  go  back  to  the  past  in  Bengal,  there  had  always  been  a  general  public  recognition  and  grateful  acknowledgment  by  Hindus  also,  of  Muslim  owners  transferring  their  lands  and  properties  to  the  Waqf  board  for  charitable  purposes.   We  come  across  an  old  Bengali  document  signed  by  one  Habibullah  Bahar       who “Waqf  koriya  Islamer  sebaye  bilaya  diyachhilen”  (donated  his  property  in  the  name  of  Waqf).  (Re:  Byaboharik  Bangla  Abhidhan.  Bangla  Academy.  Dhaka.  1992)

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Part 1: The Legacy of Waqf – From pious endowments to modern law

The concept of Waqf is deeply rooted in Islamic jurisprudence, representing a unique form of religious and charitable endowment. In Islamic law, Waqf signifies the permanent dedication, by a person professing Islam (known as the Waqif), of any property, whether movable or immovable, for purposes recognized by Muslim law as pious, religious, or charitable. Crucially, once a property is declared Waqf, its ownership is considered to vest in God Almighty, rendering it inalienable – it cannot typically be sold, gifted, or inherited. The income generated from these properties is earmarked for specific objectives outlined by the Waqif, such as the upkeep of mosques, dargahs, graveyards, imambaras, the support of educational institutions (madrasas), or providing assistance to the poor and needy within the community. A caretaker, known as a Mutawalli, is usually appointed to manage the property’s day-to-day affairs.

There are 872,000 registered Waqf properties across the country, running into lakhs of acres. This immense scale explains the socio-economic and religious significance of Waqf assets within the Muslim community.

The administration of these properties has evolved through various legislative frameworks over the past century. An early attempt at regulation was the Mussalman Wakf Act, 1923. Post-independence, the Waqf Act, 1954, marked the first significant effort to establish a structured system for managing these endowments. This Act underwent several amendments (in 1959, 1964, 1969, and 1984) aimed at refining administrative processes.

A more comprehensive legal structure arrived with the Waqf Act, 1995. This Act repealed the 1954 law and its subsequent amendments, seeking to provide for the “better administration of Auqaf (Waqfs) and for matters connected therewith or incidental thereto”. The 1995 Act laid down the framework for establishing State Waqf Boards and a Central Waqf Council, defining their powers and functions. Further amendments were introduced in 2013 by the then UPA government, which, among other changes, formally established the statutory framework for State Waqf Boards and increased the permissible lease period for Waqf properties from three years to thirty years, aiming for better utilization of assets.

This historical progression of legislation reveals a trend towards increasing formalisation and state intervention in the management of Waqf properties. What began as a community-managed religious practice gradually came under greater regulatory scrutiny, reflecting the complex interplay between religious institutions, community autonomy, and the state’s administrative imperatives. The sheer scale and value of Waqf assets have inevitably drawn governmental interest, shifting the focus over time from purely religious oversight towards broader concerns of administration, management efficiency, and, as recent events suggest, potentially political control. The 1995 Act itself represented a significant step in this direction, setting the stage for the more pervasive changes introduced in 2025.

Part 2: Understanding the Waqf Act, 1995: Key Provisions Explained

The Waqf Act, 1995, served as the cornerstone of Waqf administration in India for nearly three decades before the recent amendments. Understanding its key provisions is essential to grasp the significance of the changes brought about by the 2025 Act.

Defining and recognizing Waqf (Section 3 (r) – Pre-amendment)

The 1995 Act recognised Waqf formation through three primary means:

1. Declaration: A formal dedication of property by its lawful owner for religious or charitable purposes under Muslim law.
2. Waqf by User: This crucial provision allowed a property to be recognised as Waqf if it had been used for a long period for any religious or charitable purpose recognized under Muslim law, even in the absence of a formal dedication deed. This acknowledged the reality of many historical endowments, particularly older mosques, graveyards, or community spaces, where formal documentation might be lost or non-existent but continuous religious use established its character.
3. Waqf-alal-aulad: An endowment where the benefits primarily accrue to the founder’s family or descendants for a specified period, with the ultimate benefit designated for a religious or charitable purpose upon the extinction of the family line.

Governance Structure

The Act established a hierarchical structure for Waqf administration:

• State Waqf Boards (Establishment under Section 13, Composition under Section 14 – Pre-amendment): The Act mandated the establishment of a Waqf Board in every state. States could also establish separate Boards for Shia and Sunni Waqfs if their population and Waqf numbers warranted it.
  • Composition: The Boards were designed to be predominantly composed of Muslim members, reflecting the religious nature of the institutions they governed. Section 14 provided for a mix of elected and nominated members. Elected members included up to two representatives each from electoral colleges comprising Muslim Members of Parliament (MPs), Muslim Members of State Legislative Assemblies (MLAs) and Legislative Councils (MLCs), and Muslim members of the State Bar Council. Nominated members included government officials and individuals recognized for their expertise in Islamic law, finance, or administration. The Act also mandated the inclusion of at least two women members.
  • Functions (Section 32): The Boards were vested with the general superintendence of all Waqfs within the state. Their key functions included ensuring that Waqfs were properly maintained, controlled, and administered according to the Act, Muslim law, and the specific objectives laid out in the Waqf deed; settling schemes for management; directing the utilization of surplus income for approved purposes; scrutinizing and approving budgets submitted by Mutawallis; and appointing or removing Mutawallis under specified conditions.
• Central Waqf Council (Establishment under Section 9 – Pre-amendment): At the national level, the Act provided for a Central Waqf Council.
  • Composition: It was chaired by the Union Minister in charge of Waqf. Critically, Section 9 stipulated that, barring the Minister, all other members of the Council had to be Muslims. These included MPs, scholars of Islamic theology, representatives of national-level Muslim organizations, and former judges of the Supreme Court or High Courts. At least two members were required to be women.
  • Role: The Council’s function was primarily advisory. It was tasked with advising the Central Government, State Governments, and the State Waqf Boards on matters concerning the effective administration of Waqfs and the functioning of the Boards.
• Mutawalli (Defined in Section 3 (i)): The Act defined a Mutawalli as any person appointed, either verbally or under any deed or instrument by which a Waqf has been created, or by a competent authority, to manage or administer such Waqf. They were the primary managers at the property level, responsible for implementing the Waqf’s objectives and managing its income and expenditure, subject to the oversight and direction of the State Waqf Board.
• Survey Commissioner (Section 4 – Pre-amendment): The state government was required to appoint a Survey Commissioner to conduct preliminary surveys of all Waqf properties existing in the state. The Commissioner was responsible for identifying Waqfs, investigating their nature and extent, and submitting a report to the state government and the Waqf Board.

Identifying and Managing Waqf Property

• The Power of Section 40 (Pre-amendment): This section granted the State Waqf Board the power to determine, after conducting an inquiry, whether a particular property was Waqf property. The Board could issue notices to interested parties and hold hearings.
• Registration of Waqfs (Section 36): The Act mandated the registration of all Waqfs, whether created before or after the commencement of the Act, at the office of the respective State Waqf Board.
• Protection of Waqf Property: The Act included provisions to safeguard Waqf assets:
  • Restrictions on Alienation (Section 51): It generally prohibited the sale, gift, exchange, mortgage, or transfer of Waqf property. Leases exceeding one year (or three years for agricultural land) required prior sanction from the Board (Section 56). The 2013 amendment significantly extended the permissible lease period up to 30 years with Board approval, aiming for better economic utilization.
  • Penalties for Encroachment (Section 52A – added by 2013 amendment): This section defined ‘encroacher’ and prescribed penalty of imprisonment for up to two years, for illegally occupying Waqf property.

Dispute Resolution

• Waqf Tribunals (Establishment under Section 83 – Pre-amendment): To handle disputes related to Waqf properties, the Act mandated that state governments constitute one or more Tribunals. These Tribunals had jurisdiction over questions such as whether a property is Waqf, disputes regarding Mutawallis, or issues concerning Waqf administration.
  • Composition: Section 83 specified the composition: a Chairman who was a member of the State Judicial Service (holding a rank not below that of a District, Sessions, or Civil Judge, Class I), one member from the State Civil Services (equivalent in rank to at least an Additional District Magistrate), and crucially, one member having knowledge of Muslim law and jurisprudence. This composition aimed to blend judicial, administrative, and religious legal expertise.
  • Jurisdiction (Section 85): The Tribunals were granted exclusive jurisdiction over Waqf matters, explicitly barring suits or legal proceedings in civil courts concerning any dispute required to be determined by the Tribunal under the Act.
• Finality of Tribunal Decisions (Section 85 – Pre-amendment): The Act did allow the High Court to exercise revisional jurisdiction – it could call for records and pass orders either on its own motion (suo motu) or on the application of the Board or an aggrieved person on any matter which has been determined by the tribunals, and even modify such order.

Exemption from Limitation Act (Section 107 – Pre-amendment)

• A significant protective measure was Section 107, which stipulated that the provisions of the Limitation Act, 1963 (which sets time limits for initiating legal action) would not apply to any suit for the possession of immovable property in any Waqf. The purpose of this exemption was to safeguard Waqf properties from being lost due to adverse possession – where an encroacher occupies land openly and continuously for a prescribed period (typically 12 years for private immovable property under the Limitation Act). Section 107 allowed Waqf Boards to initiate recovery proceedings for encroached land regardless of how long the encroachment had persisted.

Significance of the 1995 Act

The 1995 Act, therefore, represented a layered legal architecture attempting to balance the unique religious nature of Waqf with the requirements of modern administration and state oversight. Provisions ensuring Muslim majority representation on Boards and Councils, and the inclusion of Muslim law experts in Tribunals, sought to maintain the institution’s religious integrity. However, the very establishment of state-controlled Boards, the appointment of Survey Commissioners, the broad powers under Section 40, and the Tribunal system itself signified substantial state involvement.

Part 3: The Waqf (Amendment) Act, 2025: What has changed?

The Waqf (Amendment) Act, 2025, introduces sweeping changes to the 1995 framework, impacting nearly every aspect of Waqf definition, governance, property management, and dispute resolution. The government has renamed the legislation the “Unified Waqf Management, Empowerment, Efficiency, and Development Act” (UMEED Act), in line with the government’s enthusiasm to rename things.

Redefining Waqf creation and scope:

• New Criteria for Declaration (Amended Section 3(r), New Section 3A): The Act imposes new conditions for creating a Waqf by declaration. Firstly, only a person who has demonstrably practiced Islam for at least five years can now declare a Waqf. Secondly, the Act explicitly requires the person creating the Waqf (Waqif) to be the lawful owner of the property being dedicated.
• Abolition of ‘Waqf by User’ Prospectively (Amended Section 3(r)): The Act removes the concept of ‘Waqf by user’ for recognising future This means properties cannot be newly recognised as Waqf based solely on long-term religious or charitable use without a formal declaration by a qualified owner. While the amendment includes a proviso stating that existing properties registered as ‘Waqf by user’ before the Act’s commencement will remain Waqf, it adds a crucial exception: this protection does not apply if the property is “wholly or in part, in dispute or is a government property”. This exception clause creates uncertainty for many existing ‘Waqf by user’ properties, particularly those facing legal challenges or situated on land claimed by the government.
• Waqf-alal-aulad clarification (new Section 3A(2)): The amendment specifies that the creation of a Waqf-alal-aulad (family Waqf) must not result in the denial of inheritance rights to the Waqif’s heirs, explicitly including women heirs, or infringe upon the rights of others with lawful claims. This is presented by the government as a measure to ensure gender equality and protect inheritance rights.

Shift in Property identification and Survey:

• Deletion of Section 40: The Section 40, which empowered State Waqf Boards to declare properties as Waqf after an inquiry, has been entirely removed.
• Collector’s Role in Survey (Amended Section 4): The role of the Survey Commissioner is abolished. Instead, the District Collector (or an authorised officer not below the rank of Deputy Collector) is now responsible for conducting surveys of potential Waqf properties. These surveys are to be conducted according to the procedures laid out in the state’s revenue laws. This transfers significant authority from a potentially specialised body focused on Waqf to generalist revenue administration officials, raising concerns about potential bias and lack of specialized knowledge.
• Government property: The Act explicitly states that any government property identified as Waqf will cease to be considered Waqf property. In cases of uncertainty regarding ownership between Waqf claims and government claims, the Collector is empowered to determine ownership and report to the state government.

Changes in governance bodies (Amended Sections 9, 14):

• Inclusion of Non-Muslims: A major structural change is the mandatory inclusion of non-Muslim members in both the Central Waqf Council and the State Waqf Boards. The Act specifies at least two non-Muslim members for State Boards and mandates two non-Muslims on the Council, while also removing the previous requirement that certain categories of Council members (like MPs, former judges, eminent persons) must be Muslim.
• Nomination over Election: The previous system where some members of State Waqf Boards were elected by specific Muslim electoral colleges (MPs, MLAs/MLCs, Bar Council members) has been abolished. The Act now empowers the state government to nominate all members of the State Waqf Boards. This significantly increases state government control over the composition and functioning of the Boards.
• Mandated Representation: While increasing government control, the Act also mandates specific representation within the nominated Boards. They must include at least one member each from Shia, Sunni, and recognized Backward Classes among Muslims. Additionally, if there are Bohra or Agakhani Waqfs in the state, one member from each of these communities must be included. The requirement for female representation is retained, specifying that at least two Muslim members must be women.

Tribunal reforms (Amended Section 83, Omission of Section 85 finality clause):

• New Composition: The Tribunal will now consist of three members like before but with some changes in the composition: a Chairman who is a current or former District Court judge, and a member who is a current or former state government officer of the rank of Joint Secretary or equivalent and a person having the knowledge of Muslim law.
• Appeal to High Court: In essence, provides a 90 day time limit to appeal the tribunal’s decisions to the High Court. However, the appeal provision existed in the 1995 act too.
• Digital Mandate and Financial Changes:
• Central Portal and Database (New Section 3B, Amended Section 3(ka)): The Act mandates the establishment of a central online portal and database managed by the Central Government. All existing Waqfs registered under the Act prior to the amendment are required to file detailed information about the Waqf and its properties on this portal within six months of the Act’s commencement.
• Contribution Reduction: The mandatory annual contribution payable by Waqfs from their net annual income to the State Waqf Board for administrative expenses is reduced from 7% to 5%.

Applicability of Limitation Act, 1963 (Omission of Section 107):

• Perhaps one of the most impactful changes is the omission of Section 107 of the 1995 Act. This means the Limitation Act, 1963, which sets time limits for filing lawsuits, will now apply to Waqf properties like any other property from now on. Consequently, the special protection Waqf properties previously enjoyed against claims of adverse possession is removed. Individuals or entities who have illegally occupied Waqf land for the period specified under the Limitation Act (often 12 years for immovable property) could potentially claim legal ownership, severely hindering the ability of Waqf Boards to reclaim long-encroached properties and effectively legitimizing past illegal encroachments.

These amendments, viewed collectively, represent a significant shift in the governance philosophy surrounding Waqf. While the 1995 Act balanced community involvement with state oversight, the 2025 changes appear to tilt this balance decisively towards state control. The removal of the Board’s power under Section 40, the replacement of the Survey Commissioner with the Collector, the introduction of nominated Boards with mandatory non-Muslim presence, and the altered Tribunal composition all point to a reduced role for community institutions and increased authority for government functionaries.

Part 4: A question of rights: How the 2025 amendments impact minorities

The passage of the Waqf (Amendment) Act, 2025, has been met with strong opposition and rightly so. A widespread concern regarding its impact on the fundamental rights of India’s Muslim minority is prevalent. Why?

Erosion of religious autonomy (Violation of Article 26)

Article 26 of the Indian Constitution grants every religious denomination the right to establish and maintain institutions for religious and charitable purposes and to manage its own affairs in matters of religion. The 2025 Act infringes upon this right by significantly increasing government control over Waqf administration. The transfer of survey powers to the District Collector, the replacement of elected Board members with government nominees, and, most notably, the mandatory inclusion of non-Muslims in the governing bodies (State Boards and Central Council) are direct state interference in the management of inherently religious and charitable endowments established under Muslim law.

Concerns over Non-Muslim representation

While the government presents the inclusion of non-Muslim members on Waqf Boards and the Council as a move towards inclusivity and secular administration, this provision fails to hide the intentions of the ruling establishments to somehow gain control over the spaces that have been reserved for Muslims. When contrasted with the strict norms for say the Tirumala Tirupati Devasthanam where the service rules mandate that any appointment to any category of post in the TTD should be made from among the persons professing Hindu Religion. Some employees were pulled up in February 2025 for engaging in non-Hindu activities and were sent memos.

The question of whether our society can hire individuals from different religions for non-religious roles—and what it reveals about us if we cannot—is a separate and deeply important conversation in itself. However, what needs to be noted here is that if traditional Hindu dominions like the TTD have such strict and well accepted rules over all categories of employees, it is not fair to have non-Muslims’ representation in dominions that have been held by Muslims for generations now. This is not a question of essential religious practices but a question of how spaces occupied by two religions are being treated differently.

The argument is that Waqf properties are specifically dedicated under Islamic law for purposes defined by that law, and their management should primarily rest with members of the Muslim community who understand the religious context and obligations.

Weakening property protection and potential for dispossession

Several amendments are directly weakening the legal protections afforded to Waqf properties, raising fears of systematic dispossession:

Impact of Removing Section 107

The repeal of the exemption from the Limitation Act, 1963, is arguably one of the most damaging changes. By making Waqf properties subject to claims of adverse possession (typically after 12 years of uninterrupted illegal occupation), the Act potentially legitimizes decades of encroachment and makes it significantly harder, if not impossible, for Waqf Boards to recover vast tracts of land illegally occupied in the past. This fundamentally undermines the principle of Waqf property being inalienable and perpetually dedicated.

For example, in Telangana, more than 70% of Waqf land has been encroached by various elements. Now, the biggest protection to Waqf was that even if the encroachers squatted on the land for more than 12 years, they would not have had the right to claim it and this changed with the amendment thus putting the encroached properties in danger.

Impact of abolishing ‘Waqf by User’

Removing the possibility of recognizing new Waqfs based on long-term usage closes off a vital avenue for protecting historical community assets where formal documentation is lacking. Furthermore, the caveat that even existing registered ‘Waqf by user’ properties lose protection if they are disputed or on government land creates significant vulnerability.

Collector’s Enhanced Role: Empowering the District Collector, a revenue official accountable to the state government, to conduct surveys and determine ownership in case of disputes involving government land fuels concerns about political interference and decisions potentially biased against Waqf claims. 

Arbitrary restrictions and discrimination

Certain provisions that have been brought via the amendment are plain arbitrary and discriminatory

• The ‘5-year practice’ rule

The requirement that a person must have practiced Islam for at least five years to create a Waqf is an arbitrary and intrusive limitation on religious freedom. It imposes an unnecessary burden of proof on individuals born into the faith and lacks a clear legislative rationale.

• Exclusion of ‘Waqf by User’

The prospective abolition of ‘Waqf by user’ is discriminatory against a historically significant method of recognizing community endowments based on established practice.

Conclusion

The Waqf (Amendment) Act, 2025, enacted under the banner of the “Unified Waqf Management, Empowerment, Efficiency, and Development (UMEED) Act,” seeks to reform the administration of Waqf properties in India. However, a critical examination reveals that its provisions represent a significant regression, fundamentally undermining the religious autonomy and property rights of the Muslim minority, thereby challenging constitutional safeguards.

A central pillar of this critique rests upon the Act’s assault on the autonomy guaranteed under Article 26 of the Constitution, which allows religious denominations to manage their own affairs. The systematic replacement of elected members on State Waqf Boards with government nominees, coupled with the mandated inclusion of non-Muslim members in both State Boards and the Central Waqf Council, constitutes an unprecedented level of state interference in the governance of institutions intrinsically linked to Islamic faith and practice. This contrasts starkly with the governance norms often applied to the endowments of other faiths, raising legitimate concerns about discriminatory application of legislative principles.

Furthermore, the Act delivers a severe blow to the protection of Waqf properties. The repeal of Section 107 of the 1995 Act, which shielded Waqf properties from the Limitation Act, 1963, is particularly damaging. This single amendment potentially legitimizes decades of illegal encroachment by allowing claims of adverse possession, threatening the recovery of vast tracts of land  that were intended for perpetual religious and charitable use. This action directly contradicts the core Islamic principle of Waqf property being inalienable.

While framed as a move towards transparency and efficiency, the Waqf (Amendment) Act, 2025, functions as a mechanism for increased state control over minority religious institutions and assets. It markedly weakens property protections, erodes constitutionally guaranteed autonomy, and introduces potentially discriminatory clauses. Far from progressive reform, the Act represents a shift that jeopardizes the integrity and security of Waqf institutions and properties across India, rightly prompting serious constitutional challenges.

(The author is part of the legal research team of the organisation)

Related:

Amid Waqf Debate, Should Hindu Endowment Boards be Held Responsible for the Sorry Plight of Dalits?

Waqf Amendment Act 2025: SC grants some time to Centre on condition no non-Muslims appointed to Board, Council & no change in any Waqf status

SC to UoI on Waqf Amendment: ‘Are you willing to allow Muslims on Hindu endowment boards?’

The post Waqf Amendment Act 2025: An erosion of rights under the garb of reform appeared first on SabrangIndia.

Among the suggestions outlined by the Court at the end of the hearing are

1. The properties declared by Courts as Waqfs should not be de-notified as Waqfs, whether they are by Waqf-by-user or Waqf by deed;
2. The proviso in the 2025 Act, under r which a Waqf property will not be treated as a Waqf in the period where the Collector is conducting an inquiry on whether the property is a Government land, will also be included in the interim stay.
3. All members of the Waqf Boards and Central Waqf Council must be Muslims, except the ex-officio members.

CJI Sanjiv Khanna said: “Our interim order will balance equities. We will say that whichever properties were declared by the court to be Waqf will not be denotified or be treated as non-Waqf… Whether it’s Waqf by user or not. Collector can continue with proceedings… But the proviso will not be given effect to. Regarding board and council… Ex officio members can be appointed. But the other members have to Muslims”

At the end of the hearing, the Chief Justice also expressed great concern at the violence that had broken out in West Bengal reportedly over the amended law. As CJI Khanna was in the process of dictating the order, it was Solicitor General of India, Tushar Mehta who asked for more time and the Court posted the matter tomorrow. 

The Waqf (Amendment) Act 2025 was passed by the Parliament earlier this month. The bill was passed in the Lok Sabha on April 3 with 288 members in favour and 232 against it, and in the Rajya Sabha on April 4, with 128 members voting in support and 95 opposing it.

A bench of Chief Justice of India Sanjeev Khanna, and Justices Sanjay Kumar and K.V. Viswanathan was hearing a batch of 10 pleas filed by AIMIM chief Asaduddin Owaisi, AAP leader Amanatullah Khan, Association for the Protection of Civil Rights, Arshad Madani, Samastha Kerala Jamiathul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, Mohammed Fazlurrahim and RJD leader Manoj Kumar Jha. 

Meanwhile, fresh pleas filed by TMC MP Mahua Moitra and Samajwadi Party leader Zia-ur-Rahman Barq were also listed.

Senior advocates Kapil Sibal, Abhishek Manu Singhvi, Rajeev Dhawan, CU Singh and others are representing the petitioners in the Waqf (Amendment) Act hearing. 

The bench comprising Chief Justice of India Sanjiv Khanna, Justice Sanjay Kumar and KV Viswanathan, which heard the matter for over two hours today, raised specific concerns about some of the provisions as follows:

1. Whether all Waqf-by-user properties have ceased to exist as Waqf?
2. How can Waqf-by-user properties, existing for many centuries, be asked to register? CJI gave the example of the Jama Masjid in Delhi.
3. Is it fair to say that a property will not be regarded as a Waqf till the government’s authorised officer completes the enquiry into the dispute whether it is a government property?
4. How can Section 2A (Amended Act) proviso override the Court’s judgments which declare properties to be Waqf?
5. Whether after the new amendments, the majority of the members of the Central Waqf Council and the State Waqf Boards will be Muslims? 

The Court also proposed to transfer to the Supreme Court the petitions from High Courts which challenge the Waqf Act 1995 for being heard together.

The omission of ‘Waqf by User’ provision, inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board, limiting the inclusion of women members to two in the Council and Boards, pre-condition of 5 years as practising Muslim for create of Waqf, diluting Waqf-alal-aulad, renaming ‘Waqf Act, 1995 to “Unifed Waqf Management, Empowerment, Efficiency and Development,” appeal against the Tribunal’s order, allowing Government to disputes regarding encroachment of government property, application of Limitation Act to Waqf Act, invalidating Waqf created over ASI protected monuments, restrictions on creating Waqfs over scheduled areas etc., are some of the provisions under challenge.

Court room proceedings

When the hearings began, at the outset, CJI Khanna said, “Two aspects we want to ask- whether we should entertain the writ petitions or relegate to the High Court. Second, what are the points you want to argue? The second aspect may help us decide the first issue.” Since there were several petitioners involved, CJI said that he would call out the names of the lawyers to argue to maintain decorum. While the court first requested senior counsel, Rajeev Dhawan, given his age, Dhawan deferred to senior counsel Kapil Sibal to start.

Senior Advocate Kapil Sibal, began the submissions for the petitioners and summarised the argument as follows: “Through a Parliamentary Act, interference is made on the essential and integral parts of the faith. Many of these provisions violate Article 26 of the Constitution.” He then referred to Section 3(r) of the Act (as amended), which introduces a condition that a person should establish that he was following Islam for at least 5 years to create a Waqf and that there was no “contrivance” in the dedication of the property. “If I want to set up Waqf, I have to show the State I am practising Islam for 5 years. If I am born Muslim, why would I do that? Will the State decide how good or bad a Muslim I am? My personal law will apply.” He also flagged the omission of ‘Waqf-by-user’. “Who are you to say there can’t be a Waqf-by-user?” Sibal asked.

This is nothing short of “Parliamentary usurpation of the Right to Faith of 250 (Muslims) in this country,” stated Sibal.

Sibal also then flagged Section 3A (on Waqf-Al-Aulad). “Who is the State is to decide how the inheritance should happen?” Sibal asked. CJI Khanna then pointed out that as regards Hindus, the Parliament has enacted the Hindu Succession Act. “Article 26 does not bar the legislature from enacting laws. 26 is universal, secular, applies across all communities. Hindu Succession Act, Hindu Guardianship Act, etc, have been enacted,” CJI Khanna said. Sibal said that inheritance applies only after the death of the person, and here, the State was interfering with the aspect during the life of the person.

Next, Sibal referred to the provision (Section 3C) in the amended act which states that once a property identified as a Government property would not be a Waqf property and that the Government’s authority would decide the dispute. “An officer of the Government will be a judge in his own cause. This is per se unconstitutional,” Sibal said. Thereafter, Sibal elaborated on Section 3D in the amended Act which invalidates the creation of Waqf over ASI-protected monuments under the ASAMR Act. CJI then pointed out that as per the provision, if the property was a protected monument at the time of the creation of a Waqf, then such Waqf would be invalid. “How many of such cases will be there? “CJI Khanna asked. “Jama Masjid,” Sibal replied. However, CJI said that the Jama Masjid was notified as a protected monument later, long after it had been declared Waqf property.

“On my reading, the interpretation is in your favour. If it’s declared as a Waqf, before it was declared as an ancient monument, it would not make any difference. It will remain Waqf, you should not be objecting unless after it’s declared as protected, it cannot be declared as Waqf. Most of the monuments, the ancient mosques, they will not be hit by this clause,” CJI said.

The next provisions (Sections 9, 14) flagged by Sibal were regarding the nomination of non-Muslims in the Central Waqf Council and the State Waqf Boards, which he said was a direct violation of Article 26. He said that the central law regarding Sikh Gurudwaras and many State laws on Hindu Religious Endowments do not permit the inclusion of persons of other faiths in the respective Boards. “It is a parliamentary usurpation of the faith of 200 million persons,” he said. Also, after the amendment, the CEO of the Board need not be a Muslim. Sibal said that these provisions allow a “complete takeover of the Boards through nomination.”

Objections were taken to the provisions mandating registration. “What is wrong with it?,” CJI asked. Sibal said that presently, Waqf-by-User can be created without registration. “You can register a Waqf which will also help you to maintain a register,” CJI said. Justice Viswanathan also weighed in saying, “If you have a deed, there won’t be any bogus or false claims.”

“They will ask us if there was a Waqf created 300 years ago, and to produce the deed. Many of these properties were created hundreds of years ago, and there won’t be any documents,” Sibal said. Sibal added that when the British came, many Waqf properties were entered in the register as belonging to the Governor General and after independence, the Government is staking claim over such properties.

Sibal also took exception to the application of the Limitation Act to the Waqf Act. CJI Khanna however, said, “You can’t really say if you impose a period of limitation, it would be unconstitutional.” Sibal said that the provision will legitimise encroachers of Waqf properties as they can now claim adverse possession.

Senior Advocate Rajeev Dhavan, for another set of petitioners, said that Waqf is an essential and integral part of Islam, as charity is an essential and integral part of the faith. Senior Advocate AM Singhvi said that deletion of ‘Waqf-by-user’ is dangerous, as about four lakh out of eight lakh properties are Waqf-by-user, which have now become illegal with “one stroke of the pen.”

CJI Khanna then said, “We have been told the Delhi High Court building is in Waqf land, the Oberoi hotel is in Waqf land. We are not saying that all Waqf-by-User properties are wrong. But there are some genuine areas of concerns too.”

Singhvi replied, “These are individual cases of abuse. But you can’t throw the baby out with the bathwater.” He argued that Waqf-by-user has been judicially recognised in many decisions and without removing the basis of these decisions, the Parliament has deleted the concept. Singhvi also prayed for a stay of the Amendment Act, saying that some of the provisions are “pernicious” which would disturb the status quo continuing for many years.

Senior Advocate CU Singh said that if the Government lays a claim over a 300-year-old Waqf property, then till the time the designated officer decides the dispute for 20-30 years, the property cannot be used as Waqf. Senior Advocates Sanjay Hegde, Rajeev Shakdher, Huzefa Ahmadi, Nizam Pasha, Shadan Farasat and P Wilson also made supporting arguments. Union’s arguments

Solicitor General of India Tushar Mehta, for the Union, highlighted that the law was enacted after an elaborate exercise by the JPC, which held meetings in different parts of the country and took views of stakeholders. SG emphasised that both houses of the Parliament passed the bill after a long debate.

CJI asked SG, “Are you now saying that Waqf-by-user, even if established by judgments of the Courts or otherwise without dispute, are void now?”

In reply, SG started giving a background about the concept of ‘Waqf’. “Waqf under the Islamic law means dedication of property to Almighty Allah for a charitable purpose. There has to be a waqif, who will say property has to be managed by a muttawali…this law does not come into the picture there. Waqf Board is different. This amendment does not touch the Waqf itself,” SG said.

Advocate Sanjay Hegde gave the Bench the instance of how, for decades the Golden Temple at Amritsar was administered by non-Sikhs and that it took a long Akali movement to ensure that Golden Temple was thereafter administered by Sikhs alone.

 “Some of these pernicious provisions have come into force immediately. We are seeking a stay on some of this…not the entire Act,” he added.

Solicitor General Tushar Mehta, representing the Union government, defended the legislation saying it was cleared by a joint parliamentary committee and went to both parliament houses before the law was passed.

Bench questions SG about status of Waqf-by-user

Justice Viswanathan said that the closest example to Waqf is the Hindu Charitable Endowments Act. “Whenever it comes to Hindu endowments, it would be Hindus who would be governing,” Justice Viswanathan said. SG said that the control would be by a Board which may consist of Hindus or non-Hindus. Justice Sanjay Kumar then asked the SG to give an example and said that the Tirupati temple board has no Hindus. SG then answered, “Charity Commissioner.” Justice Kumar said that the bench is not talking about general trusts but religious endowments.

CJI then pointed out the provision regarding disputes with government and asked why the property should not be deemed as a Waqf till the dispute is decided. “Why will it not remain a Waqf property? Let the civil court decide that,” CJI said. 

“Mr Tushar Mehta, tell us. Waqf-by-user, if accepted prior to 2025 Act, is it now declared to be void or non-existent?” CJI asked pointedly.

“If registered, no (they will remain as Waqf if they are registered),” SG answered.

CJI then sought clarity about the conditions – which the property must not be in “dispute”. “Before the Britishers came, we did not have any registration. Many of the masjids are created in 14th or 15th centuries. To require them to produce a registered deed is impossible. Most of the cases, say Jama Masjid Delhi, the Waqf will be Waqf-by-user,” CJI said.

“What prevented them from registering?” SG asked.

Justice Viswanathan then asked, “What if Section 3C is invoked by the Government saying it is government land?” CJI Khanna flagged the provision which says that the property won’t be a Waqf the moment the Collector starts investigating if it is a government land. “Is that fair?,” CJI Khanna asked.

SG said that the use as a Waqf is not stopped, and the provision only says that it won’t get the benefits as a Waqf in the meantime. “So if the property is generating rents, to whom the rent has to be paid?” CJI asked. SG said that the remedies before the Tribunal and the writ courts are available to the aggrieved party, and the provision only deals with the revenue entries. Every order passed under the Act is subject to judicial review, SG said.

CJI Khanna again repeated his question. “Is Waqf-by-user now valid or not?”

SG said that if they are registered, they will be recognised and that registration was mandatory since 2013.

Unconvinced, CJI asked: “This will be undoing something established by law. How will you register a Waqf-by-user? There will be no registered documents. It will be difficult to register. You may have a point that it is misused. But there are genuine Waqf-by-user also. I have gone through judgments of the Privy Council from 1920. If you are going to denotify Waqf-by-user properties, it will be an issue.”

Bench questions the amendment overriding Court declarations

CJI also questioned the SG about the proviso inserted to Section 2A, which says that a trust property won’t be covered by the Waqf Act, notwithstanding any judgment of the Court.

“The legislature cannot declare any judgment or decree of court as void, you can remove the basis of law but you cannot declare any judgment or declare as not binding,” CJI said.

“I don’t know why those words have come. Ignore that part. There is a large section of Muslims who don’t; want to be governed by Muslim Board. If a Muslim wants to do charity, he can do that through Trust,” SG replied.

Bench questions inclusion of non-Muslims in Boards

CJI Khanna also asked about the provisions allowing the nomination of non-Muslim members to Waqf Boards. While taking the bench through the provision, SG made a comment which clearly bothered he bench. SG said “Going by their logic, then your lordships can’t also hear this matter.”

CJI Khanna sternly said, “When we are sitting here to adjudicate, we lose our religion. We are talking about a Board which is managing religious affairs. Let’s say in Hindu temple, all are Hindu in the Governor Council. How are you comparing this with judges?”

SG asserted that the majority of the composition of the Board would be Muslims and the non-Muslims wouldn’t be more than 2. Justice Kumar, however said that the proviso to the Section does not say that only two members would be non-Muslim and stated that the SG’s argument was “militating against the statute.”

SG stated that he would file an affidavit and said that the present composition of Boards will continue till the end of their term.

CJI also raised concerns about the proviso to Section 2A. “Where public trust has been declared as Waqf, say 100 or 200 years back, you turn about and say it is not Waqf…You cannot rewrite the past of 100 years back!,” CJI Khanna said.

More than 70 petitions have been filed challenging the 2025 Act, and one petition has been filed challenging the Parent Act, the Waqf Act, 1995, Intervention applications have been filed by five BJP-led States: Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra, supporting the legislation.

The first ten petitions that were initially listed for hearing are by AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, Samastha Kerala Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, Mohammad Fazlurrahim and RJD MP Manoj Kumar Jha.

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