​Law of the land: on the judiciary and waqf amendments

The Supreme Court of India last week turned the spotlight on some controversial provisions of the Waqf (Amendment) Act, 2025 passed by Parliament recently. The amendments expand government control over waqf properties at the cost of the autonomy of the Muslim community to manage them. On April 17, the Court recorded the Centre’s assurance that waqf properties, including “waqf by user”, will not be de-notified and appointments will not be made to the Central Waqf Council and State Waqf Boards, based on provisions of the new law till May 5, the next hearing. The Centre thus preempted a judicial order which appeared possible during the hearing. The Court had raised concerns about the provisions in the new law which discontinued the category of waqf by user, made non-Muslims eligible for appointment in the council/waqf boards, and gave the state unilateral power to take over the control of waqf properties in the event of a dispute, pending its final resolution. The new law can potentially bring into dispute the legal status of many Muslim sites which came into existence before modern land registration laws were in place. Lawyers for the petitioners who are challenging the constitutionality of the new law, pointed out that as much as half of all waqf properties could be so by long usage and may lack documentation.

There are around 100 petitions before the Court on the issue. Questions that it will have to settle include whether the provision that a waqf can be made only by persons who have demonstrably practised Islam for at least five years violates the right to freedom of religion; whether changes in the definition of waqf to exclude “waqf by user” are discriminatory and whether the proposed inclusion of non-Muslim members to the council/waqf boards violates Article 26. Article 26, among other things, guarantees a religious group the right to “establish and maintain institutions for religious and charitable purposes” and “to manage its own affairs in matters of religion.” True, some sections of these amendments promote inclusivity and wider representation of different sects of the Muslim community, and ensure transparency and accountability in the management of waqf properties. However, there are concerns about their impact and distortion of the religious nature of the waqfs. Though there were prolonged consultations and a long parliamentary debate before the law was passed, pointedly missing was any effort to take the Muslim community into confidence on a matter that affects it. The Court is now seized of these questions which will have ramifications for the character of India as a secular, pluralist country.