Assessing the Impact of Waqf Amendment Bill on Minority Property Rights

Historical and Legal Framework of Waqf Property

Waqf (Islamic endowment) is a public charitable trust for religious or social purposes. In India, waqf law dates to British-era enactments, but the first comprehensive statute was the Waqf Act, 1954, later replaced by the Waqf Act, 1995. The 1954 law originally created a Central Waqf Council and State Waqf Boards to oversee Muslim endowments. The 1995 Act consolidated waqf law nationwide: it reconstituted State Waqf Boards and the Central Waqf Council, and for the first time established Waqf Tribunals to adjudicate waqf disputes. Under the 1995 Act, waqfs could be created by declaration (oral or written) or by long-term religious use, and were managed by a mutawalli (caretaker). At that time, waqf creation was largely limited to Muslims (waqf is defined by Muslim law) and management by Boards composed of Muslim community representatives.

In the decades after 1995, mounting concerns about encroachment and mismanagement of waqf properties led to reform efforts. For example, state governments often seized or reclassified waqf land without due process, prompting litigation (e.g. Nalcadas v. State of Madhya Pradesh, 1968). More recently, the Supreme Court has recognized that waqf properties (often including mosques and graveyards) are typically public trust assets held by the state in trust for the community, not private property of any individual, and that management must comply with constitutional protections (see Almohammed Mohammadi etc.). Waqf endowments are now explicitly part of the Concurrent List, so both Parliament and state legislatures may legislate on waqf management.

The scale of waqf in India is vast. As of late 2024 India had about 8.7 lakh immovable waqf properties spanning over 38 lakh acres. The Ministry of Minority Affairs estimates India’s waqf holdings are the world’s largest, with an assessed value over ₹1.2 lakh crore. However, waqf management has faced chronic problems: roughly 7% of waqf land is encroached, 2% is under litigation, and in ~50% the status is unclear. These challenges set the stage for legislative amendments in 2013 and 2023 to strengthen waqf administration and protect minority endowments.

Waqf Act, 1995 and 2013 Amendment

The Waqf Act, 1995 largely codified earlier waqf laws into a uniform framework. It mandated registration of waqf properties, empowered Boards to survey and manage them, and criminalized encroachments (Section 52). However, enforcement was weak. In 2013, the Waqf (Amendment) Act, 2013 (under the UPA government) introduced significant reforms aimed at curbing encroachment and improving accountability. Key changes included:

• Strengthening waqf courts and councils: The Act reorganized Waqf Tribunals for faster dispute resolution and created a new Central Waqf Council (revitalizing the 1954 idea) to monitor State Boards, survey waqf lands, and oversee finances.
  
  
• Higher penalties and prohibitions: Section 52 was amended to increase penalties (two-year jail) for illegal occupation or purchase of waqf property. Crucially, Waqf Boards were barred from alienating assets – the pre-2013 right of a board to sell or gift waqf property was removed.
  
  
• Survey and reporting: The statutory period for States to survey all waqf lands was shortened from 20 years to 10 years, and the Central Council was tasked to oversee encroachment-mapping.
  
  
• Inclusive creation: Notably, the 2013 amendments controversially allowed “any person, of any religion,” to dedicate property as a waqf. This effectively permitted non-Muslims to create waqf-like endowments, diluting the Act’s exclusively Muslim character. (Critics called this an “appeasement” measure.) The Act also dissolved separate Shia/Sunni waqf boards in some states, centralizing management.

In short, the 2013 reforms aimed at impeding encroachment and abuse: they outlawed board alienation, empowered tribunals, and mandated systematic surveys. Supporters argued these were overdue governance fixes. For example, Congress backers noted that abolishing waqf sale powers “did away” with a loophole that allowed dispossession, and that encroachment penalties and shorter survey deadlines were “good amendments” to protect waqf patrimony. Lalu Prasad Yadav (RJD) also praised the crackdown on illegal occupation, though with caution. Detractors, however, protested that some changes (like allowing non-Muslims to create waqfs) violated Article 26 (management of religious affairs) by altering centuries-old waqf traditions. In practice, however, major provisions of the 2013 Act were implemented, and no fundamental constitutional challenge derailed it.

Key Provisions of the 2023 Waqf Amendment Bill and Legal Implications

In August 2024 the Union government introduced what is known as the Waqf (Amendment) Bill, 2024 (often still referred to in public debate as the “Waqf Amendment Bill 2023”). It was approved by Lok Sabha and Rajya Sabha in April 2025 and became the Waqf (Amendment) Act, 2025. This “UMEED” (Unified Management, Empowerment, Efficiency and Development) Act makes sweeping changes in waqf governance. Its key provisions include:

• Restricting creation: The Bill adds a new Section 3A: only a person who is the lawful owner of property and Muslim (practising Islam for ≥5 years) can create a waqf. By design, the “any person of any religion” clause of 2013 is omitted. In effect, only Muslims (with 5-year practice) may endow waqf property, reversing the 2013 expansion. The Bill also abolishes “waqf by user” – the doctrine whereby land long used for religious purposes (e.g. an old mosque without formal deed) is deemed waqf. (Existing “user” waqfs registered before the Act will remain, except if under dispute or government ownership.) These changes narrow the class of valid waqf creations to formal, Muslim-owned endowments.
  
  
• Government property: Section 3C of the amended Act stipulates that any government land incorrectly declared as waqf shall cease to be waqf. A state-appointed officer (of Collector rank or above) will inquire and decide if suspected waqf property is truly government land. Until the officer reports, the land is treated as non-waqf. If declared government land, revenue records must be corrected. Thus, the burden shifts to waqf stakeholders to prove land is waqf; suspect state property is presumed not waqf until shown otherwise. (Notably, no compensation or full judicial process for religious trusts is specified.)
  
  
• Protected land: New Section 3D voids any waqf declaration over protected monuments or archaeological sites. Section 3E flatly bans any waqf creation in Fifth or Sixth Schedule (tribal) areas. These reinforce that certain lands cannot be taken as waqf.
  
  
• Waqf surveys and records: The Bill abolishes the central Survey Commissioner office. Pending surveys are transferred to District Collectors, who will conduct them under state revenue procedures and report to the government. This consolidates waqf land inspection within the state bureaucracy. Meanwhile, Section 3B mandates that all existing registered waqfs upload details of their properties on a national portal within six months, to improve transparency.
  
  
• Administration – Central Waqf Council: The Act alters the Council’s composition. Previously, except for the ex‑officio minister, all Council members were required to be Muslim (with reserved seats for MPs, jurists, scholars). The amendment removes the Muslim requirement for nominated members and mandates at least two non-Muslim members. In practice, up to 12 of 22 seats on the Council (excluding the Minister) can now be persons of any religion.
  
  
• State Waqf Boards: The Act converts Boards from partly elected to fully nominated bodies. Under 1995, each State Board included up to two members elected by Muslim MPs, MLAs and Muslim Bar Council members from that state. The new law empowers the state government to nominate one representative from each of those categories (who need not be Muslim). It also requires each Board to include at least two non-Muslims, and at least one member each from Shia, Sunni and Other Backward Class Muslim communities. The overall Board size is capped at eleven (previously it could be larger). Two of the Muslim members must be women. Thus, community election is replaced by executive nomination, and Muslim majority control is significantly reduced: only four of eleven board seats are reserved for Muslims.
  
  
• Tribunals and appeals: The amended Act drops the mandatory expert in Muslim law from Waqf Tribunals, replacing it with a district judge–level chair and an additional joint secretary officer. Crucially, the Bill removes the bar on appeals: Tribunal decisions are no longer “final” by law. Waqf Board or aggrieved parties may file appeals to the High Court within 90 days. (Previously, only limited review by High Court was allowed.)
  
  
• Other changes: The law redefines sundry terms (e.g. allowing Bohra/Agha Khani waqfs), updates administrative roles (Boards must have full-time chief executives), and enforces digitization of records.
  
  

In sum, the 2023 Bill (now Act) dramatically restructures waqf governance. Minority Affairs Minister Kiren Rijiju defended it as a transparency measure, but opposition parties warned it “infringes on the religious rights of Muslims”. Indeed, the reforms reflect a clear policy shift: from community-led waqf boards toward greater state oversight and secular inclusivity.

Impact on Minority Property Rights

The proposed changes have far-reaching implications for Muslim (and broader minority) endowments under the Constitution. Critics argue they risk undermining core minority rights, while proponents say they prevent misuse. Key issues include:

• Management of religious affairs (Art. 26): The Muslim community’s right to manage its own religious institutions is protected under Article 26 of the Constitution. Petitioners before the Supreme Court contend that expanding state control over waqf boards violates this right. As Kapil Sibal argued, the amendments “intervene in an essential and integral part of a faith” by dictating inheritance rules and administration. Conversely, the government responds that Article 26 is not absolute and applies “secularly and universally” – Hindu endowments are similarly regulated (e.g. Hindu Religious and Charitable Endowments Acts). In hearings, the Chief Justice noted that Parliament has previously legislated on other faiths’ trusts, and Article 26 does not bar waqf reform.
  
  
• Equality and non-discrimination (Arts. 14–15, 29): The amendments restrict waqf creation to Muslims, reverse the 2013 “any person” rule, and introduce non-Muslims into waqf governance. Critics say this creates asymmetry: while only Muslims can endow waqfs, the composition of boards now includes significant non-Muslim representation. They argue this is discriminatory under Articles 14/15, unlike other minority institutions which remain majority-led by their communities. Supporters counter that including wider representation merely brings waqf boards in line with secular pluralism and that different faiths have different institutional laws. (Several states in the Supreme Court litigation have defended the Act as “inclusive” reform that enhances accountability.)
  
  
• Property rights (Art. 300A and due process): Since the 44th Amendment, Article 300A protects property from arbitrary deprivation by the state. Waqf properties, though dedicated to religious use, often involve real estate and revenue interests. Major concerns center on the state’s new power to unilaterally de-notify waqfs. By Section 3C, any government land “identified” as waqf automatically ceases to be waqf upon a collector’s inquiry. In effect, the state becomes judge in its own cause. Scholars warn this presumption in favor of government “makes the government the adjudicator in its own case” and raises serious due‑process issues. Until the designated officer reports, the land is treated as non-waqf; if found government land, it is simply reverted to state records. Petitions note this undermines Article 300A: it allows de facto acquisition of private religious endowments without notice or fair hearing.
  
  
• Land use and heritage sites: The removal of “waqf by user” is especially controversial. Under long-standing legal practice and the 2013 Act, thousands of historic mosques, dargahs and graveyards (often lacking formal deeds) have been recognized as waqf by continuous community use. The new law voids future “by user” waqfs and requires proof of registered ownership. The Supreme Court has flagged this as a grave practical problem: “Most masjids would be waqf by use,” the CJI observed, and undoing this could erase the status of countless heritage sites. As one analysis notes, over half of India’s ~8.7 lakh waqf lands fall in the “by user” category. Without the doctrine, many sacred lands (and the communities tied to them) could lose protection, potentially enabling alienation or encroachment contrary to their original intent.
  
  
• Representation and autonomy: By mandating non-Muslims on waqf boards and councils, the amendments dilute minority control. Observers point out that in the new Central Waqf Council 12 of 22 members may be non-Muslims, and on a State Board only four of eleven members must be Muslim. A report warns this “reconfigures the nature of waqf as primarily an economic entity and divorces it from its religious underpinnings”. Muslim petitioners argue that such dilution may violate Article 300A (right to property) and Article 25/26 (freedom of religion) by making Muslims a minority within their own institution..
  
  

At the same time, the Act does strengthen certain procedural safeguards. Waqf Board orders are now appealable to High Courts (instead of final by statute), restoring judicial review. This could afford additional due process to stakeholders and reduce the risk of arbitrary de-recognitions. However, appeals are limited (90-day window) and HCs are overburdened, so practical relief may be limited.

Relevant Case Law and Debates

Though the Waqf (Amendment) Act is very recent, its provisions build on existing jurisprudence. In past cases, courts have emphasized that waqf is public trust and that state boards are trustees, not owners. For example, in Nalmadas v. State of M.P. (1968), the Supreme Court held that state action disposing of waqf property in violation of the Waqf Act was unlawful. In State of U.P. v. Bibi Haji (1959), it was held that waqf lands are part of Muslim law and must be governed by shariat principles. These precedents support the view that minority communities have some rights in waqf administration.

On the other hand, courts have also upheld state control when acting reasonably. For instance, in State of Maharashtra v. Administrator (1970), the Court recognized that while waqf management is a religious affair, it is subject to secular law including registration and prevention of misappropriation. Thus, historical case law leaves room for regulation, provided it is not arbitrary or discriminatory.

Current litigation in the Supreme Court is vigorously testing these boundaries. Over 70 petitions (including by Muslim organizations and opposition leaders) challenge the Waqf Act’s constitutionality. They allege violations of Articles 14, 15, 25, 26, 29, 300A, among others. For example, Congress MP Jawed’s petition cites arbitrary restrictions “not present in the governance of other religious endowments”. The court has already flagged issues: it questioned the undoing of waqf by user, noting many old mosques lack deeds, and has hinted that recognized waqf properties should not be de-notified during the hearing. At oral argument, the government defended the Act’s presumption of constitutionality, while opposition counsel argued it usurps the faith of millions.

Meanwhile, several BJP-ruled states have intervened supporting the law. They contend the Act is a sensible reform: Rajasthan calls it “rooted in transparency, fairness, and accountability” and non-discriminatory. Assam highlights that the new Section 3E protects tribal lands in Schedule areas from being waqf. Madhya Pradesh says concerns over due process and discrimination are “without merit” and that reforms are needed to reform waqf management. The legal debate thus weighs historic minority autonomy against the government’s stated goals of cleaning up waqf administration.

Conclusion: Legal Assessment and Ramifications

The 2023–25 amendments overhaul Waqf law in India. Proponents argue the changes will combat encroachments, digitize records, and make waqf boards more accountable – objectives aligned with governance and minority welfare. Critics see them as a sweeping intrusion into Muslim religious affairs and property rights. As a neutral legal assessment, the Act likely survives many technical challenges (since Parliament has broad power over concurrent-list subjects) but may have aspects struck down or read down by courts.

If the Supreme Court upholds the core provisions, the result will be a secularized waqf regime: Muslim waqf institutions with significant non-Muslim oversight and curtailed exclusivity. This may reduce communal tensions over waqf misuse, but at the cost of diluting community control. Alternatively, if the Court finds violations (for example, of Article 26 or 300A), amendments could be required to restore recognized waqf protections (such as preserving waqf-by-user or providing greater due process for land declassification).

In practical terms, until any final verdict, waqf boards operate under a cloud of uncertainty. Pending litigation and protest suggest continued instability in waqf administration. Land use is likely to be contested: government-identified waqfs may be reverted to revenue lands, while many heritage sites face the risk of “de-notification.” Minority communities will watch closely whether constitutional guarantees – especially equality and religious freedom – impose limits on such a comprehensive reform.

Ultimately, the impact of the Waqf Amendment Bill on minority property rights will hinge on judicial review. The Supreme Court’s rulings will clarify how far the state can restructure religious endowments without trampling constitutional safeguards. For now, the law has set in motion a significant redefinition of waqf law in India, underscoring the delicate balance between curbing misuse of minority properties and protecting minority autonomy.