Opinion: Waqf Act — Choice between self-reform and state intervention

It is in public interest that stagnant waqf holdings must either transform into engines of empowerment for the Muslim community or face repurposing for broader societal good

By Prof GB Reddy, Pavan Kasturi

The Waqf (Amendment) Bill, 2025, amending the 1995 Act, has received Presidential assent. However, the success in lawmaking is brief, as a new courtroom challenge has just begun. Several petitions have been filed in the Supreme Court challenging these amendments as violative of religious autonomy and personal rights.

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The waqf issue isn’t just about property disputes, it is where statutory reforms have to balance theological dictates and constitutional safeguards. Wakf is the permanent dedication of movable or immovable property for purposes recognised as pious, religious or charitable under Islam. Today, Wakf Boards manage over 8.72 lakh properties, which include idgahs, dargahs and qabristans.

In 2006, the Sachar Committee Report pointed out that despite a huge asset base, Waqf Boards earn only Rs 163 crore annually. Waqf can be established in three ways – by formally declaring property either through oral or written deed; through the continuous long-term use of land for religious/charitable purposes (wakf by user); and when the property is endowed after a family line ends (waqf-alal-aulad).

Key Changes, Challenges

The new amendments tighten criteria for creating waqfs under Section 3(r) and new Section 3A (conditions of waqf), requiring declarants to be practising Muslims for at least five years and owners of the property they are dedicating for wakf. However, the five-year requirement is difficult to justify under Article 14 as the classification of this duration has no reasonable basis, and imposing religious-based restrictions on property donations is unprecedented in law; no similar constraints exist for other faiths.

The contentious ‘waqf by user’ provision, which granted automatic waqf status based on prolonged religious use, has now been removed. Although Islamic law recognises verbal waqf, the new amendment requires a valid Waqfnama, raising concerns over undocumented properties. This shift aims to prevent unsubstantiated claims, particularly in contentious cases like the Bet Dwarka island dispute.

However, it diverges from conventional property law norms, where prolonged usage often secures rights. A much-needed amendment was brought through Section 3B that mandates digital registration of all properties through a centralised portal. However, despite the launch of the Wakf Management System of India (WAMSI) in 2009 — a three-year digitisation initiative — implementation stalled due to state-level delays; hence, political will is necessary to overhaul this process.

Section 3D states that designating protected monuments or heritage sites as waqf properties is legally void. Sections 4 & 5 transfer the survey responsibility from Waqf Survey Commissioners to District Collectors. However, this may overburden Collectors as they already handle diverse administrative duties.

Governance reforms in Sections 9, 13 and 14 make the system more inclusive by requiring State Waqf Boards to include two non-Muslim members, at least two women, and representation from Shia, Sunni and backward Muslim communities. The Central Waqf Council must also have non-Muslim representation.

The concern raised on this is the violation of Article 26 of the Constitution, ie, freedom to manage religious affairs, as there is a change in faith-based character in both State Boards and Central Council. While the government maintains these changes only apply to secular functions like property management and financial oversight, leaving religious matters exclusively in Muslim hands, community leaders remain apprehensive.

This isn’t unprecedented. Courts have long allowed state oversight in secular activities of religious institutions. In the Shirur Mutt Case (1954), the SC ruled that property management isn’t absolute and can be regulated by the state. The Kerala HC in the Syed Fazal Pookoya Thangal Case (1993) clarified that the Waqf Board is a government-regulated body, not a religious representative, noting that management of temporal activities (eg, property, funds) does not infringe religious freedom, if core religious practices are untouched.

The amendments, viewed through the constitutional lens of social justice and property rights, invite reflection on precedents such as the 26th Constitutional Amendment (1971) abolishing Privy Purses and cases like Raghunathrao Ganpatrao (1993)

The most contentious reform is the removal of Section 40, which previously allowed Waqf Boards to declare a property as waqf when it has reason to believe it. The decision of the Board on this was final unless revoked by the Tribunal. Sections 46 & 47 impose stricter auditing requirements, including mandatory annual audits by an auditor appointed by the Comptroller and Auditor General.

Under Sections 83 & 84, Tribunals are reconstructed to consist of a district judge as a chairman and a senior bureaucrat equivalent in the rank of Joint Secretary, the Muslim law expert position is removed, and pertinently, the right to appeal Tribunal decisions in High Courts within 90 days is provided.

Further, special legal protections for waqf properties are removed by repealing Sections 107, 108 and 108A. Previously, Section 107 exempted waqf properties from limitation laws, allowing indefinite claims. Section 108 gave automatic waqf status to evacuee Muslim properties from the Partition era. Section 108A made waqf laws override all other legislation. The amendments now subject waqf disputes to a 12-year limitation period, ending perpetual claim rights. Further, evacuee properties must also prove waqf status through due process.

These latest amendments, viewed through the constitutional lens of social justice and property rights, invite reflection on precedents such as the 26th Constitutional Amendment (1971) abolishing Privy Purses and cases like Raghunathrao Ganpatrao (1993). Hereditary privileges were abolished in the interest of egalitarianism, as former rulers surrendered vast personal wealth to advance constitutional goals of equality.

Public Interest

The lessons from history are clear, public interest often outweighs institutional inertia. If the larger public interest, though primarily for the Muslim population, is going to be served by the changes made, the violation of the right to freedom of religion may not be an effective ground for judicial interference.

Further, the power of an eminent domain, ie, the power of the state to acquire private property for a public purpose, may come to the rescue of the amended law. While waqf properties, unlike trusts, enjoy perpetual ownership, which is against the rule of perpetuity (Section 14 of the Transfer of Property Act), it is in the public interest that stagnant waqf holdings must either transform into engines of empowerment for the Muslim community or face repurposing for broader societal good. The choice lies between self-reform and state intervention, but stagnation is untenable to the constitutional ideals.

(Prof GB Reddy is Senior Professor and Pavan Kasturi is Research Fellow, University College of Law, Osmania University, Hyderabad)