Exclusive: Waqf Amendment Act, 2025: Constitutional Validity, Concerns And Challeges

The controversial Waqf Amendment Act, 2025, received the President’s assent on April 5, 2025, after being passed by the Indian Parliament. Since the Waqf Amendment bill was introduced, many from the Muslim community has been opposing it, calling it a violation of their fundamental rights and against the spirit of justice and equality. The Parliament witnessed one of the most constructive debates on the Amendment bill, with nationwide protests occurring and petitions being filed in the Supreme Court against the Amendment.

To understand more about the Amendment from the perspective of its legality and constitutional validity, Timeline reached out to Dr Sarfraz Alam, who teaches at the Faculty of  Law, Jamia Millia Islamia University. (Dr Alam wanted his LLM students to share their inputs reflecting the general concerns of the Muslim community regarding the Waqf Amendment Act 2025. So, this interview, which was designed to know the views of a subject expert, also incorporated the understanding of a youth who is aware of the legality of the Act.)

Read also: Supreme Court To Hear Petitions Challenging Waqf Act Today: Centre May Face Legal Scrutiny

Timeline: What is Waqf, Waqf board, and its functions?

LLM Student: Waqf is a charitable endowment that is created for Muslims, particularly, and is legislated by the Muslims themselves. It is created in the name of Allah, and once it is created, the Waqf property is transferred to the almighty god. The ownership of the property now rests with God, as per the Islamic view. It can not be given back to anyone, which means once the property is given, it is permanent.

Now, the Waqf board is the administration that regulates the property of the Waqf and any business that is being conducted through the creation of Waqf, and the things that are segregated are seen through the board itself. So, it is purely an administrative body.

Dr. Sarfraz Alam: In Waqf, there are 5 important aspects,

• Firstly, there is permanent and final dedication. In Arabic, Waqf means to decline something or to restrain from the own property for charity or giving it away in the name of Allah.
• Next thing is Waqif (donor), there must be a person who is giving his/her property. A person who is of sound mind, capable, and legal to give away the property.
• The third thing is that Maqoof means Waqf property. Maqoof could be any land, institution, anything, such as wells, tanks, etc.
• Fourth, is ‘Purpose of Waqf’. It’s important to define the purpose of Waqf. There must be some legal, secular, or religious purpose to waqf property.
• Fifth, is ‘Declaration’, the person must declare the Waqf verbally or in written form. In India, we have the process of registering the Waqf property. In other countries, the registration is not present, but in India, we have the registration under the PPA.

Timeline: Has the Waqf Act Been Amended Previously in the Past?

Dr. Sarfraz Alam: The first Waqf body was formed in 1913, in British India, to regulate the property of Waqf, but in independent India, the Waqf Act was passed in 1954 to regulate the property.

In 1995, to fairly administer and increase transparency, a new law was in 1995, which drastically changed the Waqf regulatory structure. Sections 9 and 14 of the Waqf Amendment Act 1995 mention the Central Waqf Council and the State Waqf boards, respectively.

The next amendment was done in 2013, and now we have another major amendment in 2025.

Timeline: Do other Muslim Countries have the concept of Waqf and Waqf board?

Dr. Sarfraz Alam: In all Muslim countries, there is a concept of Waqf, as it is an Islamic legal concept, however, their nomenclatures are different.

LLM Student: But there is a difference. In India, as it is not an Islamic country, the Waqf property is administered privately, but in other Muslim countries, there are ministries to administer Waqf properties. They have Waqf boards and ministries of Waqf.

Timeline: What is the Constitutional validity of the recent Waqf Amendment Act?

LLM Student: Section 40 of the Act has been removed, which gives the state power to declare whether the property is a Waqf property or not, but now that power has been given to the District Collectors/Magistrates to decide.

Moreover, they have taken the clause of ‘User’, through which a property could become a Waqf property by the usage of time. Now, what the amendment has done, the clause by the User has been removed. Now, the property can not be proved as a Waqf property by the Usage, and it will go directly to the government. The removal of the Clause ‘by User’ is problematic as under the Islamic provisions, once a property is under Waqf, it can not be taken back.  The taking away of Waqf property by the government is in contravention of the provision of fairness and the spirit of Natural Justice.

Dr. Sarfraz Alam: Earlier, the disputes were resolved by the Tribunal under the state Waqf board. The Tribunals were comprised of the judges of the high courts and the magistrates, considering all the legal documents. Parties could appeal against the Tribunal’s order in the Supreme Court and the High Courts. However, now the Tribunal’s decision is not final, and the case can go to other courts.

Now, the district magistrate will implement the directives of the Tribunal of the Waqf board. If the directives are not implemented, a fine will be imposed on the officer. Also, if the civil court decides a matter, the Tribunal can not reopen the case.

The 2013 Amendment Act was fairer and reasonable, which was created for the eviction and easy recovery of the Waqf property.

If we talk about the Constitutional validity of the Act, we have Article 25 and Article 26. Article 25 talks about ‘Right to Religion’, which gives us the right to carry forward our Waqf property as a matter of faith and profess, practice, and propagate our religion. Under Article 26, we have the right to create an institute to manage our religious affairs and maintain institutions for religious and charitable purposes. We have the right to own and acquire movable and immovable property for religious purposes. Article 26 also safeguards against the State’s intervention in religious affairs.

Also, the clause that if a person converts to Islam, he/she can not Waqf property is a blot on the fundamental rights. Even a non-Muslim had given their lands to the Waqf. It goes against this spirit.

LLM Student: The provision of 5 5-year clause is not as unfair as it gives a person a choice if he/she reconvert to another religion.

The fragmentation of the Waqf boards for communities such as the Bohra community and the Aga Khan has also been introduced in accordance with the Shia and Sunni Waqf boards, which was introduced in 2013.

Read also: Waqf Land Row In Tamil Nadu And Kattukollai Villagers Protest: Explained

Timeline: How can the Waqf Amendment Act 2025 bring social security to Muslims?

LLM Student: The inclusion of non-Muslim members in the board committee raises questions about the social security, as there could be conflict on intent, and it could be counterproductive. How can people from different faiths address the issue of one faith?

Dr. Sarfraz Alam: When we create very well-defined structures made of Officers, ministers, and dignitaries, there are fewer chances that the social outreach will remain the same. When there is a restricted structure and formula, it’s difficult for a common person to go and ask for help from the Waqf. After the Shah Bano Begum Case in 1984, when the issue of maintenance came after divorce, Waqf boards could not comply as there was a lack of funds and regulations, which influenced the easy flow of resources to the concerned persons.

The survey, data collection, meetings, and lots of other official work decrease the efficiency of the Waqf boards, which goes against the original purpose.

Timeline: What are the main issues of the Waqf Amendment Act 2025?

LLM Student: The entire structure of the act has been changed. Inclusion of non-Muslim members in the board, reduction of Women members to only two (no clarity yet), removal of By User, and appeal provision are some of the concerns.

Timeline: What can we expect from the courts while challenging the Waqf Amendment Act 2025?

Dr. Sarfraz Alam: Various High Courts, such as Nagpur, Patna, and Other High Courts, have said about the constitutional validity of the Waqf functions, and the State can make amendments to it. In the State of Rajasthan Vs Sajjan Lal case Supreme Court held that State regulations of religious property do not violate Article 25 and Article 26. But overbroad and excessive encroachment on the religious rights of a person is a violation of fundamental rights.

The state can make laws, and we will abide by laws, but excessive encroachment is not justified.

From the Supreme Court, we expect the preservation of the core spirit of the Fundamental Rights of the people.