The Unified Waqf Act, 2025 has sparked nationwide controversy over its constitutionality, with key provisions now under Supreme Court scrutiny.
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NEW DELHI: The Unified Waqf Act, 2025, hailed by the government as a step towards streamlining the administration of waqf properties, has triggered widespread debate and legal challenges. Critics argue that the law significantly alters the traditional framework of waqf governance, raising concerns over religious autonomy, constitutional validity, and the protection of minority rights.
From the redefinition of waqf boundaries to changes in board compositions and exclusion of Muslim charitable trusts, several provisions have drawn sharp criticism from community leaders, legal experts, and political representatives.
As the Supreme Court begins scrutinizing the controversial clauses in the ongoing hearing, this explainer breaks down the key issues fueling the backlash and the constitutional questions now under judicial consideration.
Key Constitutional and Legal Issues
- Contravention of the Object and Purpose of the Waqf Act, 1995
Whether the Waqf (Amendment) Act, 2025, by significantly altering the administrative and religious framework established under the Waqf Act, 1995, defeats or is in direct conflict with the original legislative intent and objectives of the principal Act. - Violation of the Right to Freedom of Religion (Article 25)
Whether the newly inserted requirement that only those individuals who have demonstrably practiced Islam for a continuous period of at least five years may create a Waqf is violative of the fundamental right to freely profess, practice, and propagate religion, as enshrined under Article 25 of the Constitution. - Discriminatory Exclusion of “Waqf by User”
Whether the exclusion of the concept of “Waqf by user” — a customary practice wherein long-standing use of a property for religious purposes leads to its recognition as Waqf — from the amended definition of Waqf constitutes unreasonable classification and results in arbitrary exclusion, thereby violating Article 14 of the Constitution. - Infringement of Religious Denominational Rights under Article 26
Whether the mandated inclusion of non-Muslim members in the composition of the Central Waqf Council and the respective State Waqf Boards infringes upon the autonomy of religious denominations to manage their own religious affairs, particularly violating the rights under Article 26(b) (to manage religious affairs) and Article 26(d) (to administer property in accordance with law).
Case Background
Under Islamic law, the institution of Waqf signifies a permanent dedication of property for religious or charitable purposes in the name of God. Such properties, once declared as Waqf, acquire the status of inalienability—meaning they cannot be sold, gifted, or inherited. The income generated from Waqf assets is customarily utilized for the upkeep of religious establishments such as mosques, madrassas, and for the welfare of the underprivileged.
The Waqf Act, 1995, was enacted to provide a statutory mechanism for the registration, protection, and governance of Waqf properties across the country. Further strengthened by the Waqf (Amendment) Act, 2013, the legislation provided for the establishment of State Waqf Boards and a Central Waqf Council, thereby creating a comprehensive regulatory framework for Waqf administration.
On 4 April 2025, the Parliament passed the Waqf (Amendment) Bill, 2025, following extensive deliberation in both Houses — 12 hours in the Lok Sabha and 14 hours in the Rajya Sabha. The President of India granted assent on 5 April 2025, thereby enacting the Amendment into law.
The legislation was originally introduced in the Lok Sabha on 8 August 2024 under the title of the Unified Waqf Management, Empowerment, Efficiency, and Development Act, signalling the Union’s intent to reform the administration of Waqf assets through enhanced efficiency, accountability, and transparency.
Among its most significant provisions, the 2025 Amendment eliminates the recognition of “Waqf by user” for future Waqf declarations and mandates the inclusion of non-Muslim members in the composition of Waqf Boards. It also augments the Union Government’s involvement in dispute resolution and property management mechanisms related to Waqf.
While the government has defended these changes as administrative reforms aimed at reducing mismanagement and promoting transparency, critics argue that the law undermines the religious autonomy of the Muslim community and dilutes the essence of the Waqf institution.
ALSO READ: Waqf Amendment Act | “Undoing ‘Waqf by User’ Will Create Problems”: Supreme Court
WAQF AND HISTORICAL PERSPECTIVE
It is often said that
‘Constitutionality and legality go hand in hand and if the legality of a legislation cannot be seen to be visible , the Constitutionality of it comes in question per se”
Therefore, if a law enacted by Parliament contravenes established legal principles, it cannot withstand constitutional scrutiny. It is imperative for lawmakers to exercise vigilant oversight throughout the legislative process. The constitution of our beloved country exists as an ever-evolving living document, it accomodates each culture , religion and community in its Vibrancy , more so , it has something for everyone , so that each individual citizen’s right is addressed to the core and he does not go to his home empty handed!
The Supreme Court has also in it’s numerous wide ranging judgements addressed that, simply because a bill was passed having a large majority in the Parliament , it does not mean that it will gain majority in the very living times , it has to go through the Test of Constitutionality and Legality.
A Waqf signifies a lasting dedication of movable or immovable property by a Muslim for purposes deemed religious, charitable, or pious under Islamic law, and is regarded as an essential religious practice.The act of creating a Waqf is primarily driven by a spiritual motive, a factor that Indian courts have occasionally failed to consider adequately when adjudicating such cases.
Whether strict adherence to the textual basis and the requirement of religious intent is always feasible remains debatable!
Nonetheless, the Waqf institution forms an integral part of Islamic practice in India, where the administration of Waqf assets holds religious significance and is closely linked to the welfare of the community. Unlike purely secular systems of governance, the management of these properties reflects both spiritual duties and societal obligations.
If we look into the historical patterns of Waqf regulation, from 1954—when the first comprehensive legislation governing Waqf was introduced—it becomes evident that the administration and scope of Waqf have undergone significant transformations.
The Waqf Act, 1954, brought in by the then-Congress government, centralised control over Waqf properties and established Waqf Boards with substantial powers. While aimed at streamlining administration, it drew criticism and suspicion over potential political motives, particularly concerns around community appeasement.
This Act repealed several pre-independence laws and drastically altered the governance framework of Waqf properties.
In 1984, following the submission of a report by the Waqf Inquiry Committee, an amendment was proposed to rectify financial and operational inefficiencies. However, strong opposition from the Muslim community—especially concerning the increased powers granted to the Waqf Commissioner—meant the amendment could not be fully implemented. A more consolidated framework emerged with the Waqf Act, 1995, which incorporated key elements of the 1984 proposal but continued to face community resistance, prompting the establishment of a Joint Parliamentary Committee (JPC).
This ultimately led to the Waqf (Amendment) Act, 2013, which significantly empowered Waqf institutions in line with the JPC’s recommendations. Over these decades, the definition and scope of Waqf evolved—beginning with the 1954 Act that recognized Waqf by User and waqf-alal-aulad, thereby extending recognition to properties used informally for religious or charitable purposes. The 1995 Act further solidified this status by ensuring that properties would remain classified as Waqf even if their use ceased, provided a degree of permanence was established.
The 2013 amendment marked a significant shift by allowing non-Muslims to dedicate property as Waqf, broadening its potential base. The concept of Waqf by User, initially introduced in 1954, was further expanded in 1995 and reinforced in 2013, enhancing the powers of Waqf Boards to recognize and manage such properties, even without formal dedication.
ARTICLE 26 AND WAQF- THE ENTANGLEMENT
Article 26 of the Indian Constitution says:
“Subject to public order, morality and health, every religious group or any part of it has the right—
(a) to set up and maintain religious and charitable institutions;
(b) to manage its own religious matters;
(c) to own and get movable and immovable property; and
(d) to manage such property according to the law.”
This clearly shows that the administration of Waqf properties is protected under Article 26. Especially clause (d), which says that religious groups have the right to manage their own properties, but the main contention here raised by various write petitions is that
“this should be done as per the law—not by any random interference from the government”
ALSO READ: Waqf Amendment Act | “Undoing ‘Waqf by User’ Will Create Problems”: Supreme Court
State Autonomy and Waqf
Waqf is not just a matter of property or secular management. It is deeply connected to the religious freedom guaranteed under Articles 25 and 26 of the Constitution. Waqf is different from other religious trusts—it is a religious endowment in Islam that carries a spiritual and community duty.
The government, under the Waqf Act, acts more like a trustee, managing the properties for the benefit of the Muslim community. This trust must be respected and not misused.
The Writ petitons filed before the Apex Court state correctly , that the Waqf (Amendment) Act may appear to be only regulatory, but it gives State Waqf Boards and governments unregulated control over things like appointing Mutawallis (caretakers), selling or leasing property, and day-to-day decisions.
Such interference can break the spirit of Article 26 and also Article 25, which protects the right to follow and practice religion—something that includes charitable acts like Waqf.
The Constitution gives every religious group the right to manage its own religious matters and property. Article 26(d) says they can look after their religious property “in accordance with law.”
The Supreme Court has said again and again that while the State can make rules to stop misuse or mismanagement, it cannot take over religious institutions or reduce their autonomy.
In the Shirur Mutt case (1954), the Court said that
“managing religious property is a basic right and cannot be taken away by simply saying it’s for the “public interest.”
In Sardar Syedna Taher Saifuddin v. State of Bombay (1962),
the Court also said that the State cannot interfere in core religious matters.
Likewise, in Ratilal Panachand Gandhi v. State of Bombay (1954), it was held that
“the government can only make laws if they don’t destroy the religious nature or control of the trust“
Although the New Waqf Amendment Act , 2025 has been passed with all rigours in the Parliament , it must still not cross the boundaries , that are laid by the Constitution of India and it must only be within the bounds of Article 25 and 26 of the Constitution.
One more violative , provision that comes into sight is that
“Muslim must practice Islam for at least five years before being eligible to donate property for Waqf“
Alongwith , the provision of state autonomy in the regulation of properties , one of the most discriminatory provision is this one as it is restrictive in nature.
The Act also says that government land or property cannot be turned into Waqf. While it is understandable that people can only donate property they legally own, this rule may cause confusion or suspicion.
It may unfairly portray the Muslim community’s charitable intentions in a negative light. A clearer explanation or revision of this part could help build better public understanding and encourage more support for genuine Waqf contributions.
One of the most troubling changes is the new power given to District Magistrates (DMs) to settle disputes over Waqf properties. Giving such powers to administrative officers instead of courts or Waqf Boards poses a serious risk.
It could lead to genuine Waqf properties being falsely labelled as “disputed” just because of baseless complaints or pressure from fringe groups. This creates a major threat to the protection and identity of Waqf properties.
The Bill also violates Article 30 of the Indian Constitution, which which protects the right of minority communities to manage their own religious and educational institutions. By giving more power to bureaucrats instead of the community or courts, this Act weakens constitutional safeguards and goes against the spirit of secularism and minority rights.
Application of the Act – Section 2
Section 2 of the Waqf (Amendment) Act excludes private trusts that were previously treated as waqf under court orders.
Exclusion of Trusts from the Waqf Act
The provision states that the Act will not apply to any trust (regardless of its name) established before or after the Act’s commencement, if it is regulated by statutory provisions related to public charities. Even if a Muslim-established trust serves purposes similar to a waqf (such as religious or charitable purposes), it will be treated under public charity laws rather than as waqf.
This provision nullifies the effect of past or present court rulings that treated a trust as waqf, even if it had been legally declared as such. It explicitly excludes these trusts from the scope of the Waqf Act.
Wrongful Declaration of Waqf – Section 3C (1)
Section 3C (1) introduces a provision barring the classification of government property as waqf, even if it had been previously declared as such. The amendment removes any possibility of declaring government land as waqf property, regardless of its religious use or past declarations.
This raises important questions regarding the maintenance of existing waqf property status and may raise constitutional concerns related to religious freedom, as outlined under Articles 25 and 26 of the Constitution. These Articles guarantee the right to manage religious affairs, which could be challenged by the amendment.
Establishment of the Central Waqf Council – Section 9
The 2025 amendment to Section 9 of the Waqf Act introduces significant changes in the composition of the Central Waqf Council. Previously, the Council was composed entirely of Muslim members, except for the Union Minister who served as chairperson.
Under the new amendment, the Council must include at least two non-Muslim members, with the possibility of non-Muslim representation expanding to 12 out of 22 members
. Additionally, state and union territory waqf boards must include one representative each from the Bohra and Aghakhani communities, along with two non-Muslim members, excluding ex-officio members. This change represents a shift toward more inclusive representation on waqf boards.
Composition of Waqf Boards – Section 14
The 2025 amendment to Section 14 brings notable changes to the composition of state and union territory waqf boards. Under the previous Act of 1995, elected members were primarily Muslim members of the legislature, state bar councils, and mutawallis with an income threshold.
The nominated members included Muslim professionals and Islamic scholars. The new amendment mandates the inclusion of at least two non-Muslim members, two women, and a representative each from the Bohra and Aghakhani communities if these communities have waqf properties.
This change empowers state governments to nominate members to the waqf boards, moving away from the prior system where members were elected based on Muslim electoral colleges.
Litigation before the Supreme Court
Following the enactment of the Amendment, a wave of legal challenges ensued. Over 65 petitions were filed before the Supreme Court by various stakeholders including politicians, religious organizations, and civil society groups.
The petitioners include prominent political leaders such as Asaduddin Owaisi (AIMIM), Amanatullah Khan (AAP), Mahua Moitra (TMC), Imran Masood (INC), Udit Raj (INC), Manoj Kumar Jha (RJD), and Mohammad Salim (CPI-M), among others. Religious and rights-based organizations such as the Jamiat Ulama-e-Hind, Anjuman-E-Islam, and the Association for the Protection of Civil Rights are also among the petitioners.
These petitioners contend that the 2025 Amendment Act is unconstitutional, alleging that it infringes upon religious freedoms, disproportionately targets the Muslim community, and encroaches upon the autonomy of religious institutions.
In support of the Amendment, six state governments—Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh, and Assam—have filed applications in the Supreme Court defending the law’s constitutionality.
The matter was first heard by a Division Bench comprising Chief Justice Sanjiv Khanna and Justices P.V. Sanjay Kumar and K.V. Viswanathan on 16 April 2025. During this preliminary hearing, the Court considered the maintainability of at least ten petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025.
On April 18, 2025, a Supreme Court Bench led by Chief Justice Sanjiv Khanna granted the Union government seven days to respond to challenges against the Waqf (Amendment) Act, 2025, renaming the matter as In re: Waqf (Amendment) Act 2025.
While refusing an interim stay, the Court recorded the Union’s assurance that no new appointments would be made to the Waqf Council or State Waqf Boards, and that the status of waqf by user properties would remain unchanged until the next hearing.
The Court, managing nearly 100 petitions, appointed nodal counsels for both sides and limited petitioners’ arguments to five lawyers, with the next hearing scheduled for the week starting May 5.
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