Waqf 2025: Beyond Supreme Court Hearing, Doubts About Constitutionality of the Act Still Persist

The interim order passed by the the three-judge bench of the Supreme Court led by Chief Justice of India, Sanjiv Khanna, on the constitutionality of the Waqf (Amendment) Act, 2025, focusses on two aspects of the amended legislation and imposes a de facto stay on their operationalisation till the next date of hearing fixed on May 5, 2025.

The first condition, as per the recorded assurance of the solicitor general, is that no appointments are to be made under Sections 9 and 14 of the 1995 Waqf Act. These two sections involve appointments to the central Waqf Council and the state waqf boards, whose compositions have been altered by the 2025 amendments; replacing elected members from electoral colleges by nominated members and expanding the scope of nominating multiple non-Muslim members.

Second is that till the next date of hearing, no waqf, including a waqf by user, shall be de-notified, nor will their character or status be changed. This involves amendments like the deletion of the waqf by user principle as well as the reallocation of powers of survey, determination, registration and notification of waqf properties from survey commissioners and state waqf boards to district collectors and the Union government. 

These provisions have been challenged by the petitioners as being violative of Article 26 of the Indian constitution, which confers every religious denomination the fundamental right to establish and maintain religious institutions, manage its own affairs in matters of religion and own as well as administer property in accordance with law. The petitions have also alleged violations of Article 25, which grants the right to freely profess, practice and propagate any religion, Article 14, which guarantees equality before law and Article 15 which prohibits discrimination on grounds of religion.

There are several other aspects and provisions in the lengthy amendment legislation of 2025 whose constitutional validity have been challenged. For instance, the provision that from now on an waqf endowment can only be made by those who are able to demonstrate that they have been practising Muslims for the preceding five years and that no "contrivance" is involved in their endowment, has already drawn widespread criticisms for being outrightly discriminatory towards one religious community. 

The constitutionality of such provisions of the amendment law are expected to be thoroughly debated and resolved in the apex court in the days to come. However, there are several more contentious provisions in the amended law that need a closer look as well. 

Centralised waqf portal and database

There is another serious constitutional issue vis-à-vis the amended legislation related to the principle of federalism, which has received less attention in the debate so far. 

Section 4(vi) of the Waqf (Amendment) Act, 2025, defines “portal and database” as "the waqf asset management system or any other system set by the Central Government for the registration, accounts, audit and any other detail of waqf and the Board, as may be prescribed by the Central Government". This means a new online portal would be set up by the Union government under the amended legislation which would become the centrepiece of the management of waqf assets across the country. 

Also read: Waqf Bill Passage Proves Indian Muslims are Political Orphans

The parent Waqf Act, 1995, had delegated the power to determine and register waqf properties to state level waqf boards, under Chapter V, Sections 36 to 43. Through the creation of this centralised “portal and database”, all de facto powers of registration, accounts, audit and other aspects of waqf asset management are being taken over by the Union government.  

It is noteworthy that an online portal on the waqf asset management system of India already exists under the aegis of the Union ministry of minority affairs. The portal was launched in 2010 under the scheme for "Computerisation of records of the State Wakf Boards" by the minority affairs ministry to computerise the various functions and processes of state waqf boards through a centralised software application. 

Waqf property records held by the state waqf boards were being updated on a monthly basis till now. The reports have been available on the WAMSI portal since October 2011.

Now, Section 5 of the Waqf (Amendment) Act, 2025 introduces new sections 3A and 3B to the parent Waqf Act, 1995, which mandates every waqf registered prior to the commencement of the new law to file the details of the waqf property on the new centralised portal and database, within a period of six months from the commencement of the law. A further six months extension of the deadline has been allowed, subject to the satisfaction of the waqf tribunal. Thus, the government is going to initiate a re-registration of all waqf properties across the country.

The list of details of the waqf properties that require to be submitted on the portal for re-registration described in Section 5[3B(2)], mandatorily includes the name and address of the creator of the waqf, mode and date of such creation and the waqf deed (if available). These are additional requirements for re-registration, not specified under the parent Waqf Act, 1995, which required "a description of the waqf properties sufficient for the identification thereof" [Section 36(3)]. 

Section 5(3C) further mandates that any "government property" identified or declared as waqf property shall no longer be deemed to be waqf property and in case of dispute, a "designated officer" of the state government shall now determine its character through inquiry. These provisions are clearly designed to delist and denotify waqf properties which were declared waqf on the basis of waqf by user principle. 

Section 7 further inserts new sections 2A and 2B to the parent act mandating the state governments to upload the notified list of waqf properties on the centralised portal and database within ninety days from the date of its publication in the official gazette, with details of each waqf including identification, boundaries, their use and occupier, details of the creator, mode and date of creation, purpose of waqf, their present mutawallis and management, "in such manner as may be prescribed by the Central Government”. 

Hence, the power to register waqf assets is being taken over by the Union government. Sections 21, 22 and 23 of the Waqf (Amendment) Act, 2025 amend sections 36 and 37 of the parent Waqf Act, 1995 and delete Section 40 entirely. 

Through these amendments, state waqf boards have been replaced as principal authorities to register waqfs and maintain the list of waqfs. The amended legislation now mandates all applications for registration of waqf only through the new "portal and database", created, designed and controlled by the Union government. 

Also read: What Concerns About the Waqf Amendment Bill Does the JPC's Report Identify?

The certificates of registration for waqf properties are also to be issued through this new portal. As a result, the role of the state waqf boards appears to be nothing more than data entry operators, under the new scheme of things.  

Violation of federalism 

The takeover of the powers of waqf determination, registration and maintenance of the waqf register/list from state waqf boards and state governments by the Union government implies a total overhaul of the waqf asset management framework. Does it even concur with the federal principles enshrined in India's constitution?

“Charities and charitable institutions, charitable and religious endowments and religious institutions” are listed under the concurrent list of the seventh schedule under Article 246 of the Constitution. This implies both the parliament and state legislatures have power to make laws on such matters. In accordance with the spirit of concurrent legislation, the parent waqf act was enacted by parliament but it delegated powers of determination and registration of waqfs to the state waqf boards.  

The introduction of the centralised “portal and database” and its conversion into the sole and mandatory channel for registration and certification of all waqf properties, through the Waqf (Amendment) Act, 2025, appear to be an abuse of the power of concurrent legislation under Article 246. 

Several state governments and legislatures are unlikely to concur with such a centralised system. It is relevant to note that “land”, “rights in or over land”, “burial grounds” and “pilgrimages” also come under the state list of the seventh schedule. Bulk of the immovable waqf properties are of similar nature, which is why state governments, assemblies and waqf boards are better equipped to regulate them. 

Grave implications

Mandatory re-registration of all existing waqf properties, declared through notification or registration, may lead to large scale denotification, alienation and diversion of existing waqf assets, given the more stringent criteria of registration in the centralised portal and database. 

Such apprehensions have been further fuelled by the addition of a new proviso, through Section 3 of the Waqf (Amendment) Act, 2025. Before the amendment, Section 2 of the parent waqf law stated that it shall apply to "all waqfs" except the Durgah Khawaja Saheb Ajmer [which is administered by the Durgah Khawaja Saheb under Act, 1955]. 

However, the newly added proviso in Section 2 reads: 

"Provided further that nothing in this Act shall, notwithstanding any judgement, decree or order of any court, apply to a trust (by whatever name called) established before or after the commencement of this Act or statutorily regulated by any statutory provision pertaining to public charities, by a Muslim for purpose similar to a waqf under any law for the time being in force."

This abstruse provision permits a Muslim to make charitable endowments outside the waqf law. By allowing retrospective application of this provision (before the commencement of the new law), this contrivance opens a gaping loophole in the extant waqf law which can be utilised to circumvent the permanent nature of a waqf dedication as per the Islamic principle – "once a waqf, always a waqf".

Now, once a waqf property dedicated by a Muslim is excluded/delisted as waqf via the centralised "portal and database", it can be reregistered as a non-religious charitable property where diversion for non-charitable/commercial purposes is permissible. 

The example of a well-known waqf property dispute may be useful to understand the gravity of the situation arising out of this proviso. Antilia, the 27 storey residence of India's richest man in Mumbai, was built on the land once belonging to an orphanage, the Currimbhoy Ebrahim Khoja Yateemkhana. This prime property of over 4,500 square metres was bought by Mukesh Ambani's Antilia Commercial Private Limited at the price of only Rs. 21.5 crore in 2002. The property's market valuation at the time was widely considered to be at least 10 times that amount. The Maharashtra waqf board's claim on the property, was dismissed by the Bombay high court but an appeal against it remains pending in the Supreme Court. 

The newly added proviso in Section 2 of the waqf law can nullify the Maharashtra waqf board's claim on Antilia's property.  

Many such waqf properties under legal disputes, comprising hundreds of acres of land, might now get excluded/delisted from the centralised portal and also get re-registered elsewhere. This would legalise a number of encroachments on waqf properties, especially if the encroachers are rich and powerful. 

To prevent such gross injustices and abuse of power, all those provisions of the Waqf (Amendment) Act, 2025 enabling the creation of a centralised "portal and database", disempowerment of the state waqf boards and dilution of the religious character of waqfs require rigorous judicial scrutiny.

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