Judicial Test Likely as Waqf (Amendment) Bill Opens New Front on Constitutional Grounds

The Waqf (Amendment) Bill, 2025 is a proposed overhaul of India’s waqf laws, aiming to reform how waqf properties (Islamic charitable endowments) are managed. Introduced by the Union government in Parliament, the bill seeks to amend the Waqf Act, 1995 with wide-ranging changes. It has sparked intense controversy: the ruling party argues the amendments will bring transparency and curb misuse of waqf assets, while opposition leaders and Muslim organizations warn it undermines minority rights and religious freedom​. Below is a detailed report on the bill’s key provisions, the legal and constitutional issues raised, reactions from political and community leaders, and its potential impact on waqf management and Muslim minority rights.

Key Provisions of the Waqf (Amendment) Bill, 2025

1. Inclusion of Non-Muslim Members in Waqf Bodies: The bill alters the composition of the Central Waqf Council and state Waqf Boards by mandating the inclusion of non-Muslim members. Under the 1995 Act, these bodies were composed exclusively of Muslims, but the amendment removes this requirement and even allows non-Muslims to form a majority in these councils and boards​. This marks a significant shift from past practice, as similar bodies for other religions (Hindu and Sikh endowments) are typically governed by members of those faiths​.

2. Government Oversight in Waqf Property Surveys and Disputes: The bill replaces the Survey Commissioner (who previously oversaw surveys of waqf properties) with the local District Collector​. The Collector is empowered to conduct surveys and verify waqf lands. Notably, any property owned by the government that is “identified as waqf” will cease to be waqf – in such cases the Collector will determine the ownership and update land records, effectively reclaiming lands deemed to be government property​. In disputes over whether a property is waqf or government-owned, a senior government official will have the final say instead of a waqf tribunal​.

3. Restructuring of Waqf Tribunals and Appeals: The composition of Waqf Tribunals, which adjudicate waqf-related disputes, is to be changed. The bill removes the provision requiring an expert in Muslim law on the tribunal and reconstitutes it to include only a judicial officer (a current or former district judge) as chairman and a bureaucrat of joint secretary rank as member​. Moreover, the finality of tribunal decisions is revoked – currently, Waqf Tribunal decisions are final with no appeal in civil courts, but the amendment would allow parties to appeal tribunal orders in the High Court within 90 days​. This means waqf disputes could go through the regular court hierarchy, instead of ending at the tribunal level.

4. New Criteria for Creating Waqf & Removal of “Waqf by User”: The bill tightens the rules on how a new waqf can be created. It specifies that only a person who has been practicing Islam for at least five years may declare a waqf, and the waqif (donor) must own the property being dedicated​. This effectively requires proof of one’s religion over a period before they can endow property as waqf. Additionally, the amendment eliminates the doctrine of “waqf by user”, which allowed land long used for religious or charitable purposes (even without formal declaration) to be recognized as waqf​. In other words, informal or customary use alone will no longer suffice to claim a property as waqf. (After objections, the Joint Parliamentary Committee recommended that ending “waqf by user” should not apply retrospectively, so existing waqf properties formed by long usage would remain protected​.)

5. Mandatory Digital Registration of Waqf Properties: To improve record-keeping, the bill makes it compulsory to register every waqf property on a central online database within a fixed timeframe. All waqf assets would have to be entered on a central portal within six months of the law coming into force (a tribunal could grant extensions in special cases)​. This move toward digitization is intended to increase transparency and prevent “unknown” waqf lands from slipping through the cracks. An official statement indicated the bill will introduce technological upgrades to manage waqf records and strengthen auditing of waqf assets​.

6. Other Changes: The bill also proposes renaming the principal act and updating definitions (for example, refining the definition of waqf). It emphasizes proper utilization of waqf properties for their intended religious or charitable purpose and includes provisions to facilitate recovery of encroached waqf lands​. Penalties for illegal occupation may be enforced more stringently, and oversight by the central Waqf Council over state boards could increase. The government asserts these changes are meant to “overcome shortcomings” in the 1995 Act and improve the efficiency of waqf management​.

Legal Implications and Constitutional Concerns

The Waqf (Amendment) Bill has raised serious legal and constitutional questions. Experts, opposition politicians, and Muslim scholars have argued that several provisions may violate fundamental rights or established constitutional principles:

• Freedom of Religion and Article 26: Perhaps the most prominent concern is that forcing inclusion of non-Muslims in Islamic waqf boards could infringe Article 26 of the Constitution, which guarantees religious denominations the right to manage their own affairs in matters of religion​. Waqf boards historically function as Muslim community institutions; critics say that allowing a non-Muslim majority to decide on mosque properties, graveyards, and other waqf matters undercuts the autonomy of the Muslim community’s religious affairs​. Comparable laws for Hindu temples or Sikh gurdwaras do not appoint people of other faiths to manage those trusts, they point out. The All India Muslim Personal Law Board (AIMPLB) has termed this aspect “unconstitutional,” arguing that it interferes with the community’s religious administration​.

• “Basic Structure” of the Constitution: During parliamentary debate, opposition lawmakers claimed the bill violates the Constitution’s basic structure – a term referring to fundamental principles like secularism and federalism. Congress MP Gaurav Gogoi, for instance, lambasted the bill as “an attack on the basic structure of our Constitution” and alleged it was designed to “dilute [constitutional] provisions, defame minority communities, ... and disenfranchise minorities”​. He argued that forcing religious certification (the 5-year rule for waqf creators) and empowering the state to take over waqf properties undermine constitutional guarantees​. Gogoi and others also object that the federal structure is impacted since waqf administration, though on the concurrent list, is being tightly controlled by central mandates without adequate state or community say​

.

• Right to Equality and Non-Discrimination: Some provisions draw scrutiny under equality principles (Article 14). The criterion that only individuals who have professed Islam for 5+ years can create a waqf sets up a distinction even among Muslims. Legal analysts note the bill creates an arbitrary class between those who adopted Islam more recently and lifelong Muslims​. Requiring a “certificate” or proof of religion over time has been criticized as profiling; opponents say no other community is asked to prove their faith to exercise rights in this manner​. If challenged in court, the government would need to justify why a five-year threshold is rational and not discriminatory.

• Removal of Muslim Law Experts from Tribunals: By eliminating the Muslim-law expert member on waqf tribunals, the bill could affect the quality of justice in waqf disputes. Waqf matters often involve interpretation of Islamic jurisprudence; hence, under the 1995 Act, a scholar versed in Muslim law sat on the tribunal. The amendment drops this requirement​. The PRS Legislative Research report warns that this change “may affect redressal of waqf-related disputes” because judges and bureaucrats might lack expertise in nuanced waqf laws​. This could become a legal point if community petitioners argue that specialized quasi-judicial forums for waqf are being weakened, potentially violating the right to effective remedy.

• Property Rights and Minority Welfare: Muslim leaders contend the bill paves the way for state appropriation of waqf properties. The clause nullifying waqf claims on government land is especially contentious – what if historical waqf sites (shrines, cemeteries, etc.) are recorded on revenue land? There are fears that officials could unilaterally declare such properties “government land” and dispossess the waqf​. AIMPLB representatives have called this a direct affront to minority property rights and hinted it could violate protections for religious property under Article 25 and minority rights under Article 30. They label the bill a “blatant infringement on the constitutional rights” of Muslim citizens in India​.

Given these issues, it is expected that the courts may ultimately decide the bill’s fate if it becomes law. The AIMPLB has already announced plans to challenge the bill in court on constitutional grounds​. Legal scholars note that while Parliament can legislate on waqf (a concurrent subject)​, the content of the law must still respect fundamental rights. If enacted, the law could be tested in the Supreme Court for consistency with religious freedom and equality guarantees. The government, for its part, insists that it has the authority to regulate waqf for the public interest – BJP leaders pointed out provisions in the Constitution allowing laws on religious endowments and argued that the bill stays within those bounds​. How the judiciary views these competing claims will be crucial.

Reactions from Political Parties and Muslim Organizations

The Waqf Amendment Bill has led to sharp divisions in India’s political arena and prompted an outcry from Muslim community leaders. Here is an overview of how different stakeholders have reacted:

• Bharatiya Janata Party (Government): The ruling BJP and its allies strongly back the bill, framing it as a long-needed reform. Government officials say the intent is to modernize waqf management, increase transparency, and benefit the Muslim community by curbing corruption and mismanagement​. Union Minister Kiren Rijiju (who introduced the bill in Lok Sabha as then Minority Affairs Minister) has defended the amendments, dismissing accusations of unconstitutionality. “Some people are saying that the Bill is unconstitutional... then how can it be illegal?” Rijiju remarked, arguing that waqf laws have existed since before Independence​. BJP leaders emphasize that thousands of waqf properties lie unused or encroached, and they claim the new law will “regulate Waqf properties, prevent misuse, and ensure fair governance”​. For example, BJP spokesperson C.R. Kesavan stated the bill “will empower underprivileged sections of the Muslim community like children, the poor, widows and women” by unlocking assets for their welfare​. He and others have accused the previous Congress-led waqf regime of allowing “vested interests” to exploit waqf resources, and present the amendment as a corrective measure​. Jagdambika Pal, the BJP MP who chaired the Joint Parliamentary Committee on the bill, also accused opponents (like AIMPLB) of “creating confusion” and asserted that the government’s aim is to “improve the law to benefit minorities, particularly the underprivileged”​.

• Congress and Opposition Parties: The opposition INDIA bloc – including Congress, TMC, DMK, AAP and others – has unanimously opposed the bill, calling it divisive and anti-minority. Congress leaders have been vocal: Mallikarjun Kharge, Leader of Opposition, denounced the bill as “divisive” and one that “would torment minorities,” urging its withdrawal​. In Lok Sabha, Congress deputy leader Gaurav Gogoi led the charge, accusing the government of targeting Muslim institutions for political gain. He alleged that the bill’s true objectives are to “defame and divide” communities and “take control of Waqf properties”, warning that “today their eyes are on one minority group; tomorrow they will target another”​. Several opposition MPs on the JPC submitted dissent notes (which they claim were ignored) and even staged a walkout during the committee’s proceedings, protesting that their suggestions were “bulldozed” by the majority​. Asaduddin Owaisi, AIMIM MP, has been at the forefront of opposition; he blasted the inclusion of non-Muslims in waqf boards, asking “If no non-Hindu can become a member of the Hindu Endowment Board, then why are you [doing this] here?” and calling the bill a “direct attack on religious freedoms”​. Owaisi has also charged that the bill is intended “to snatch away graveyards, khanqahs, and dargahs from Muslims”​, reflecting a widespread fear that community lands will be usurped. Leaders from Trinamool Congress, RJD, DMK and others have echoed similar concerns, often describing the bill as “unconstitutional”, “communal”, and an assault on India’s pluralism​. Notably, six opposition MPs (from Congress, TMC, AAP, DMK, AIMIM) wrote to the Lok Sabha Speaker alleging the JPC process was bypassing parliamentary norms​. Even a key NDA ally, the TDP, sought changes – it intervened to ensure the removal of “waqf by user” would not apply retroactively, signaling some discomfort within the ruling coalition as well​.

• Muslim Institutions and Community Leaders: Prominent Muslim organizations have reacted with alarm and anger, viewing the bill as a threat to minority rights. The All India Muslim Personal Law Board (AIMPLB), a leading body of scholars and community leaders, has been at the forefront of protests. It convened emergency meetings and press conferences to condemn the bill, which AIMPLB General Secretary Maulana Fazlur Rahim Mujaddidi described as “discriminatory, communally motivated and a blatant infringement on the constitutional rights of Muslim citizens.”​. Just before the bill was taken up, AIMPLB members in New Delhi held demonstrations wearing black bands in silent protest​. They have called upon all Muslim organizations and secular civil society to unite against what they term a “black law”​. The AIMPLB announced it will challenge the bill in court and, if it passes, launch nationwide peaceful agitations akin to the farmer protests that forced repeal of farm laws in 2021​. “We will not rest until this law is withdrawn,” declared AIMPLB spokesperson Syed Qasim Rasool Ilyas, urging street protests across cities​. Other groups, such as Jamaat-e-Islami Hind and various state waqf board officials, have echoed these views, with representatives joining AIMPLB’s press conference in solidarity​. They argue the bill is a blatant attempt by the government to seize control of Muslim endowments; as former MP Mohammad Adeeb put it, “an attempt to seize properties of the Muslim community including dargahs, mosques and graveyards”, which makes it “the worst day for Muslims” in recent times​. On the other hand, a few voices within the Muslim community have welcomed aspects of reform – for instance, some reformist scholars agree that transparency and efficiency in waqf management are needed, though they oppose the communal undertones. By and large, however, Muslim religious leadership is united in resisting the bill, viewing it as state encroachment on their faith institutions.

Impact on Waqf Property Management and Muslim Minority Rights

If enacted, the Waqf Amendment Bill, 2025 would bring significant changes to how waqf properties are managed on the ground, with far-reaching consequences for the Muslim minority’s rights and heritage:

• Administration and Transparency: On paper, the reforms aim to make waqf administration more transparent and accountable. The creation of a central database for all waqf properties could be a positive step — India has over 8.7 lakh registered waqf properties spread across 9.4 lakh acres (making the Waqf Boards the largest landowners after the Railways and Defence)​. Yet, surveys have long been incomplete and records patchy, with roughly 50% of waqf properties’ status unknown and thousands of cases of encroachment​​. A digital inventory and empowering District Collectors to survey could help identify dormant assets and recover illegally occupied waqf lands for community use​. In theory, more professional management — including non-Muslim technocrats or administrators — might curb internal corruption within some Waqf Boards and ensure waqf revenues truly benefit schools, clinics, and welfare schemes for Muslims (many of whom are economically backward). The government argues that by modernizing record-keeping and oversight, the bill will “ensure proper utilisation of Waqf properties for their intended purpose” and serve the development of the community as well as national interest​

• Centralization of Control: However, these changes also centralize control over waqf in the hands of government authorities, reducing the autonomy of Muslim-managed institutions. By replacing an independent Survey Commissioner with the district administration and giving bureaucrats final authority in disputes, the bill shifts power from community bodies to the state. Waqf Boards, which were semi-democratic with elected Muslim members, would effectively be filled by government nominees – including potentially a majority from outside the community​. This raises the prospect of waqf decisions (such as sale or development of properties, leasing, or use of waqf funds) being taken without concurrence of the traditional guardians (mutawallis and community scholars). Muslim minority rights could be impacted if the community feels alienated from managing assets that are symbolically and historically theirs. Critics say the trust between the minority community and the state could erode further, as the bill feeds into the narrative that the government seeks to interfere in Muslim affairs. Any perceived misstep – for example, a non-Muslim-majority board deciding to repurpose a mosque property – could trigger community backlash and social conflict.

• Protection of Religious Properties: A major concern is the fate of sensitive religious sites: mosques, graveyards, shrines (dargahs), etc., many of which are waqf properties. With the new provisions, if any of these sites happen to be on government-recorded land or lack documentation, authorities might declare them not waqf. Community leaders fear a wave of litigation and disputes if officials start to contest longstanding waqf usage of lands​. The recent incident in Sambhal (Uttar Pradesh), where a waqf survey at a mosque led to unrest, underscores how volatile such issues can be​. While the bill intends to clear ambiguities (ensuring de jure government land isn’t held up by de facto waqf claims), in practice this could translate into painful evictions or demolitions if not handled sensitively. The elimination of “waqf by user” going forward also means that community practice alone can no longer sanctify a site – this might protect private/government land from arbitrary waqf claims, but it could also prevent new grassroots religious sites (like a new burial ground or prayer space that lacks formal deed) from gaining legal recognition. Overall, there is a risk that the heritage and religious rights associated with waqf places will be compromised under a more stringent regime. AIMPLB and others have warned that the law “endangers the very fabric of India” by potentially dispossessing a community of its sacred spaces​

.

• Potential Benefits vs. Alienation: The net effect on the Muslim minority will depend on implementation. If the changes succeed in cleaning up waqf management, they could unlock huge economic and social benefits. (The Sachar Committee in 2006 estimated Indian waqf properties’ value at over ₹1.2 lakh crore, but yielding minimal income for the community​.) Proper development of these assets – building schools, hospitals, or affordable housing on waqf land – would indeed empower poor Muslims, aligning with the government’s pitch. The inclusion of women and people from Backward Classes in Waqf Boards (the bill mandates at least two Muslim women members and representation of Shia, Sunni, OBC Muslims) is another aspect that could democratize waqf institutions​. Yet, these potential benefits may be overshadowed if the community perceives the law as an imposition without consent. The manner in which opposition amendments were rejected in the JPC and the unilateral push by the government have already created a trust deficit. Many predict that enforcement of the new provisions will face stiff resistance – from mass protests to legal challenges – which could stall the very reforms the bill seeks to accomplish.

• Increased Litigation and Uncertainty: One likely consequence of the bill, as pointed out by observers, is a period of intense litigation. With the opening of High Court appeals for tribunal cases, many ongoing disputes over waqf property could get entangled in protracted court battles​. Gogoi cautioned that the bill “will only lead to increased litigation and more problems”, rather than resolving issues swiftly​. Furthermore, if the law is challenged in the Supreme Court for constitutionality, the status of its provisions might remain uncertain for years. This uncertainty could put a freeze on development or investment related to waqf lands in the interim. In short, unless a consensus is built, the reform might paradoxically make waqf administration more contentious in the near term.

In conclusion, the Waqf (Amendment) Bill, 2025 represents a high-stakes attempt to reform a vast sector of religious endowments in India. It introduces notable changes aimed at transparency and state oversight of waqf assets​, but it has also triggered fears of minority disenfranchisement and erosion of constitutional rights​. As the bill moves through Parliament, its fate will be closely watched. The coming days may see further negotiations or amendments to address the constitutional concerns. If passed in its current form, a legal battle appears imminent, and how the courts arbitrate between reform and religious rights will be crucial. For now, the debate over the waqf bill has become a flashpoint in India’s broader discourse on secularism, minority rights, and the extent of state intervention in religious affairs.