Judicial Review Of The Waqf (Amendment) Act, 2024–25

Abstract

The Waqf (Amendment) Act, 2024-25, represents the most significant legislative intervention in the governance of Muslim charitable endowments in India in over a decade. Enacted with the stated objectives of enhancing transparency, streamlining administration, and unlocking the economic potential of vast waqf properties, the amendment has, nevertheless, become a subject of intense legal and constitutional scrutiny. This article provides a comprehensive analysis of the potential grounds for judicial review of the amending legislation. It begins by contextualizing the amendment within the historical and legal framework of waqf governance in India, primarily governed by the Waqf Act, 1995. The core of the article dissects the key provisions of the 2024-25 amendment, including the altered composition and powers of the Central Waqf Council, the introduction of stringent timelines for property surveys, the modified provisions for lease and sale of waqf properties, and the expanded oversight mechanisms. The analysis then systematically evaluates the constitutional and legal challenges these amendments are likely to face. Primary grounds for review explored include the legislative competence of Parliament vis-à-vis State Legislatures, considering waqf is a subject enumerated in the State List of the Seventh Schedule; the violation of fundamental rights, particularly the right to manage religious affairs under Article 26 and the right to equality under Article 14; and the infringement upon the basic structure of the Constitution by potentially undermining the secular character of the Indian state. The article concludes by arguing that while the intent to reform waqf management is ostensibly laudable, the specific mechanisms employed by the amendment risk excessive state control over a core aspect of Muslim personal law and religious endowment, setting the stage for a landmark judicial determination that will define the balance between regulatory oversight and religious autonomy in India.

Introduction

The institution of waqf, an inalienable religious endowment in Islamic law, has been a cornerstone of Muslim social, religious, and economic life in the Indian subcontinent for centuries. A waqf involves the permanent dedication of a property—whether movable or immovable—for purposes recognized by Muslim law as pious, religious, or charitable. The management and protection of these properties, which constitute one of the largest portfolios of charitable assets in India, have been a persistent challenge, marked by allegations of mismanagement, encroachment, and political interference. The principal statute governing waqfs in contemporary India is the Waqf Act, 1995, which established a comprehensive structure involving Waqf Boards at the state level and a Central Waqf Council at the national level for supervision and guidance.

The Waqf (Amendment) Act, 2024-25, emerges against this backdrop, propelled by the government's narrative of "reform and modernisation." The proponents of the amendment argue that the existing legal framework has been inadequate to prevent the large-scale misappropriation and under-utilization of waqf assets. They contend that the amendment is a necessary step to introduce corporate governance, attract investments, and ultimately, enhance the revenue generated from these properties for the benefit of the Muslim community, particularly in the spheres of education and social welfare.

However, the enactment of the amendment has been met with profound apprehension and opposition from a significant section of the Muslim community, legal experts, and opposition political parties. The critics allege that the amendments, far from being benevolent, are a Trojan horse for consolidating central government control over Muslim religious institutions, thereby undermining the community's constitutional right to manage its own affairs. The very premise of the amendment—that the state must play a more intrusive role in the administration of a religious endowment—is seen as a departure from the secular principles of the Indian Constitution.

This article posits that the Waqf (Amendment) Act, 2024-25, is fraught with legal and constitutional infirmities that make it highly susceptible to a challenge before the Supreme Court and various High Courts of India. The judicial review of this legislation will not merely be a technical examination of its provisions but a profound constitutional moment that will interrogate the limits of state power in regulating religious endowments. The courts will be called upon to adjudicate on a complex matrix of issues involving federalism, secularism, fundamental rights, and the autonomy of religious minorities. This article aims to deconstruct this impending legal battle by providing a detailed examination of the amendment's provisions and the multifaceted grounds on which its validity can be, and likely will be, contested.

I. Historical and Legal Context of Waqf Governance in India

To fully appreciate the implications of the 2024-25 amendment, one must first understand the legal evolution of waqf administration in India. The British colonial administration initiated the formal codification of waqf law with the Wakf Act, 1923, which provided for the first time for the creation of a centralised database of waqf properties through surveys. Post-independence, the Wakf Act, 1954, was passed, retaining the essential framework but failing to effectively address the core issues of management and encroachment.

The Waqf Act, 1995, marked a significant shift. It repealed the 1954 Act and established a more robust structure:

» State Waqf Boards: Established for each state and union territory, with representatives elected from among Muslim legislators, Muslim members of bar associations, and prominent scholars, alongside government nominees.

» Central Waqf Council (CWC): A statutory body at the national level tasked with advising the Central Government on waqf affairs, providing financial assistance to State Waqf Boards, and overseeing their general performance.

» Waqf Tribunals: Specialized tribunals were set up for the adjudication of disputes relating to waqf properties, aiming for expedited justice.

The 1995 Act, while an improvement, was itself amended in 2013 to strengthen the CWC, make the Survey of Waqfs a more rigorous process, and enhance the penal provisions for encroachment. Despite these efforts, reports of inefficiency and corruption within various State Waqf Boards persisted, creating the political and administrative justification for the more radical changes proposed in the 2024-25 amendment.

II. Key Provisions of the Waqf (Amendment) Act, 2024-25: A Critical Overview

The amendment introduces several transformative changes to the 1995 Act. The most contentious among them are:

» A. Reconfiguration of the Central Waqf Council (CWC):

The amendment significantly alters the composition, powers, and functions of the CWC.

» Composition: It increases the number of government-nominated members, potentially reducing the representation from the Muslim community itself. Crucially, it grants the central government the power to appoint the Chairperson of the CWC, who may not necessarily be a person from the Muslim community or with expertise in waqf law.

» Powers: The CWC is no longer merely an advisory body. It is granted enhanced supervisory powers over State Waqf Boards, including the power to issue directives on administrative and financial matters. It can also conduct audits of State Waqf Boards and inquire into their affairs.

B. Mandatory Digitalization and Strict Timelines for Survey of Waqfs:

The amendment mandates a complete digitalization of all waqf records and imposes strict, non-extendable timelines for the completion of the Survey of Waqf properties. Failure by a State Waqf Board to complete the survey within the stipulated time can invite central intervention, including the withholding of funds or even supersession of the Board.

C. Liberalization of Lease and Sale of Waqf Properties:

This is arguably the most economically significant and legally contentious change.

» Lease: The amendment simplifies and liberalizes the process for leasing waqf properties. The maximum lease period has been extended, and the approval thresholds within the State Waqf Boards have been lowered.

» Sale/Exchange: While the 1995 Act heavily restricted the sale of waqf properties, permitting it only in exceptional circumstances with the prior sanction of the state government, the new amendment provides a broader, albeit still regulated, framework. It allows for the sale of a waqf property if it is deemed necessary for the development of another waqf property or for the betterment of the community, subject to approval by the CWC and the central government.

D. Enhanced Oversight and Supersession Powers:

The amendment arms the central government with stronger mechanisms to control State Waqf Boards. It expands the grounds on which a State Waqf Board can be superseded for "persistent default" or "public interest," and it grants the CWC a central role in recommending such action.

III. Grounds for Judicial Review of the Amendment

The constitutional validity of the aforementioned provisions can be challenged on several well-established grounds of judicial review.

A. Legislative Competence: The Federalism Challenge (Article 246 & Seventh Schedule)

The most fundamental challenge to the amendment lies in the distribution of legislative powers between the Union and the States. The Constitution's Seventh Schedule delineates subjects for legislation.

• Entry 32 of the State List explicitly covers "Charities and charitable institutions, charitable and religious endowments and religious institutions."

• Entry 28 of the Concurrent List covers "Charities and charitable institutions, charitable and religious endowments and religious institutions subject to the provisions of Entry 32 of the State List."

A plain reading indicates that the primary legislative power over religious endowments, including waqfs, rests with the State Legislatures. The Parliament's authority to enact the Waqf Act, 1995, and its subsequent amendments was derived from Article 246(1), which grants it residuary power over matters not enumerated in any list, and more pertinently, from the doctrine of occupying the field through a law that applies nationwide. However, the 1995 Act was largely an enabling and supervisory framework.

The 2024-25 amendment, by centralizing power in the CWC and the central government, arguably crosses the line from creating a supervisory structure to directly administering and managing a State subject. The challenge will be that the amendment is a colourable piece of legislation—it purports to be a law on a subject within Parliament's competence (coordination between states) but its pith and substance is a law on "religious endowments," a State subject. The Supreme Court will have to determine whether the amendment is merely an incidental encroachment permissible under the doctrine of pith and substance or a blatant overreach that violates the federal structure of the Constitution.

B. Violation of Fundamental Rights

1. Violation of Article 26: Right to Manage Religious Affairs

Article 26 of the Constitution grants every religious denomination the right, inter alia, "to manage its own affairs in matters of religion" and "to own and acquire movable and immovable property and to administer such property in accordance with law."

The management of waqf property is intrinsically linked to the religious affairs of the Muslim community. The creation of a waqf is a religious act, and its administration is a fulfilment of a religious obligation. The Supreme Court, in a catena of judgments, has held that the right to administer property is a fundamental right, and any law that regulates this right must be for the purpose of ensuring that the administration is efficient and does not violate the objectives of the endowment.

The petitioners will argue that the 2024-25 amendment does not merely regulate but usurps the community's right to administer its properties. Key arguments will include:

» Erosion of Autonomy: By granting the central government the power to appoint the Chairperson of the CWC and by packing the Council with government nominees, the amendment effectively places the supreme governing body of waqfs under state control. This fundamentally undermines the denominational autonomy guaranteed by Article 26.

» Control over Alienation: The provisions that allow the CWC and the central government to approve the sale or long-term lease of waqf properties directly infringe upon the community's right to decide how its religious property is to be used. This is not a regulatory measure to prevent maladministration but a transfer of decision-making power from the community to the state.

The state's defence will likely rely on the phrase "in accordance with law" in Article 26 and argue that the amendment is a valid regulatory law aimed at preventing mismanagement and ensuring that the vast economic potential of waqf properties is harnessed for the community's benefit. The judiciary's task will be to balance this regulatory interest against the core fundamental right to religious autonomy.

2. Violation of Article 14: Right to Equality

Article 14 guarantees equality before the law and the equal protection of the laws. A law can be challenged under Article 14 if it is arbitrary, or if it creates a classfication that has no rational nexus with the object sought to be achieved.

The amendment can be challenged on the grounds of arbitrariness and hostile discrimination.

» Arbitrariness: The sweeping powers granted to the CWC and the central government, such as the power to supersede a State Waqf Board on vague grounds like "public interest," can be argued to be arbitrary and uncanalized, granting excessive discretion to the executive without adequate guidelines.

» Hostile Discrimination: A more potent challenge would be that the amendment singles out the Muslim community for a unique and intrusive form of state control over its religious endowments. No similar centralised government-controlled mechanism exists for Hindu temples (which are largely governed by state-specific acts) or Christian churches. This selective and deep intervention into the management of only Muslim religious properties can be argued to be a form of hostile discrimination, violating the guarantee of equal treatment. The state may counter that waqfs, due to their unique nature as perpetual endowments and their vast scale, require a unique solution, but the burden will be on it to demonstrate that the differential treatment is reasonable and not discriminatory.

C. Violation of the Basic Structure of the Constitution: Secularism

The doctrine of the basic structure, propounded by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala (1973), holds that Parliament cannot amend the Constitution to alter its basic features. Secularism is unequivocally recognized as a basic feature of the Indian Constitution.

Secularism in the Indian context does not mean a complete separation of church and state but rather a principle of equal respect for all religions. A critical component of this secularism is the non-interference of the state in the essential religious practices and autonomous functioning of religious denominations, unless such interference is strictly necessary for public order, morality, or health.

The challenge to the 2024-25 amendment on the ground of secularism will be two-fold:

» Excessive Entanglement: The amendment creates an unprecedented level of entanglement between the state and the administration of a specific religious community's endowments. By placing the levers of control in the hands of the central government, the law effectively makes the state the primary manager of Muslim religious properties. This, the petitioners will argue, destroys the neutrality of the state and constitutes a direct assault on the secular character of the polity.

» Majoritarian Bias: It will be argued that such a law, which would be politically unfeasible to enact for the majority community's religious institutions, is only possible because it targets a religious minority. This selective intrusion, they will contend, violates the principle of secularism which mandates that the state must maintain a principled distance from all religions, not control one while leaving others autonomous.

While the Supreme Court has been cautious in striking down laws for violating the basic structure, the profound implications of this amendment on state-religion relations may compel the Court to consider this argument seriously.

D. Procedural Irregularities and Delegated Legislation

The amendment empowers the central government to make rules for carrying out the provisions of the Act. If these rules, once framed, go beyond the scope of the parent legislation or lay down substantive provisions that should have been part of the law itself, it can be challenged as excessive delegation of legislative power. Furthermore, the legislative process itself, if rushed or conducted without adequate consultation with stakeholders from the Muslim community, could be cited as a factor demonstrating the arbitrary nature of the law.

IV. Potential Judicial Outcomes and Implications

The judicial review of the Waqf (Amendment) Act, 2024-25, can lead to several possible outcomes:

» Complete Upholding: The Court may accept the government's justification and uphold the amendment in its entirety, a scenario that seems unlikely given the strong constitutional arguments against it.

» Striking Down the Entire Act: The Court may find the entire amendment act unconstitutional, primarily on the grounds of legislative competence or violation of the basic structure, thereby restoring the pre-amendment position under the 1995 Act.

» Reading Down Provisions: The Court may employ the doctrine of "reading down" to interpret certain provisions in a manner that saves them from unconstitutionality. For instance, it may read into the provision for the CWC Chairperson's appointment a requirement that the person must be from the Muslim community.

» Severing Unconstitutional Provisions: The most likely outcome is a severance of the most egregious provisions. The Court may strike down specific sections—such as the central government's power to appoint the CWC Chairperson or the requirement for central approval for the sale of properties—while allowing the less intrusive provisions, such as those for digitalization, to stand.

The final judgment will have far-reaching implications. It will either reaffirm the autonomy of religious minorities and the federal balance of power, or it will signal a new, more interventionist paradigm for state management of religious endowments, with potentially troubling consequences for India's pluralistic democracy.

Conclusion

The Waqf (Amendment) Act, 2024-25, is a legislative behemoth whose journey through the judicial system will be closely watched. While the professed aims of transparency, accountability, and development are unexceptionable, the chosen path of centralized state control is constitutionally suspect. The amendment treads heavily on the domains of federalism, religious freedom, and equality, raising profound questions about the relationship between the Indian state and its largest religious minority.

The grounds for judicial review are substantial and rooted in the foundational principles of the Indian Constitution. The challenge based on legislative competence questions the very authority of Parliament to enact such a law. The assault on fundamental rights, particularly under Articles 14 and 26, strikes at the heart of the community's religious and cultural identity. And the argument that the amendment violates the basic structure of secularism elevates the dispute to a defining moment for Indian constitutionalism.

The judiciary, as the ultimate arbiter of the Constitution, now bears the responsibility of drawing a line between permissible regulation and impermissible takeover. Its verdict will determine whether the institution of waqf remains a manifestation of the Muslim community's religious and charitable autonomy, or becomes an instrument of state policy, thereby altering the delicate secular fabric of the nation. The judicial review of the Waqf (Amendment) Act, 2024-25, is therefore not just a legal technicality; it is a battle for the soul of the Constitution itself.

Here are some questions and answers on the topic:

1. What is the primary constitutional challenge to the Waqf (Amendment) Act, 2024-25 based on the distribution of legislative powers between the Centre and States?

The most fundamental constitutional challenge to the Waqf (Amendment) Act, 2024-25, is grounded in the doctrine of legislative competence and the federal structure of the Indian Constitution. The challenge arises from the Seventh Schedule, which distributes law-making powers. Specifically, Entry 32 of the State List explicitly grants State Legislatures the power over "Charities and charitable institutions, charitable and religious endowments and religious institutions." While the original Waqf Act, 1995, could be justified as a broad supervisory framework, the 2024-25 amendment significantly centralizes power by enhancing the role of the Central Waqf Council and the central government in the day-to-day administration and crucial decisions, such as the sale and lease of waqf properties. Petitioners will argue that the pith and substance, or the true character, of this law is about managing religious endowments, a State subject. Therefore, they will contend that Parliament has overstepped its authority, making the amendment a colourable piece of legislation that violates the federal scheme of the Constitution by usurping the powers reserved for the States.

2. How does the amendment potentially violate the fundamental right of the Muslim community to manage its own religious affairs under Article 26 of the Constitution?

The Waqf (Amendment) Act, 2024-25, poses a significant threat to the fundamental right guaranteed under Article 26, which grants every religious denomination the right to manage its own affairs in matters of religion and to administer its property in accordance with law. The management of waqf property is not merely a secular activity but is intrinsically linked to the religious obligation and piety of the Muslim community. The amendment infringes upon this autonomy by placing substantial control in the hands of the state. Key provisions, such as granting the central government the power to appoint the Chairperson of the Central Waqf Council—who may not even be from the Muslim community—and by requiring approval from central bodies for critical decisions like the sale or long-term lease of waqf properties, effectively transfer the core administrative power from the community to the government. This is not seen as a mere regulation to prevent maladministration but as a wholesale takeover, thereby violating the essential right of the community to administer its religious endowments as it sees fit, subject only to lawful regulations that do not destroy its substantive right.

3. On what grounds can the amendment be challenged as a violation of the Right to Equality under Article 14?

The amendment can be challenged under Article 14 on the dual grounds of arbitrariness and hostile discrimination. The argument of arbitrariness stems from the vast and uncanalised discretionary powers granted to the executive, such as the power to supersede a State Waqf Board on vague grounds like "public interest" without clear guidelines, which could lead to its misuse. More substantially, the challenge of hostile discrimination asserts that the Muslim community is being singled out for a uniquely intrusive form of state control over its religious endowments. There exists no parallel centralised, government-controlled mechanism for the religious endowments of other communities, such as Hindu temples or Christian churches, which are largely governed by state-specific acts with a different degree of autonomy. This selective and deep intervention into the management of only Muslim religious properties creates a discriminatory classification that lacks a rational nexus with the object of the law, which is ostensibly better management of endowments. This unequal treatment, it will be argued, violates the guarantee of equal protection of the laws.

4. Why do critics argue that the amendment violates the basic structure of the Constitution, specifically the principle of Secularism?

Critics argue that the amendment violates the basic structure of secularism because it leads to an excessive entanglement of the state with the religion of a specific minority community. Indian secularism mandates that the state maintain a principled distance from all religions, neither favouring nor interfering with them. By placing the central government at the helm of the administrative structure governing waqf properties—a core religious institution for Muslims—the amendment fundamentally alters this relationship. It transforms the state from a neutral regulator into the primary manager of Muslim religious endowments. Furthermore, this selective intrusion is perceived as being possible only because it targets a religious minority, a similar law being politically unfeasible for the majority community. This act of taking over the management of one religion's endowments while leaving others relatively autonomous is seen as a destruction of the state's neutrality, thereby damaging the secular fabric of the nation, which is an inviolable basic feature of the Constitution as per the Supreme Court's landmark rulings.

5. What are the potential outcomes if the Supreme Court decides to undertake a judicial review of the Waqf (Amendment) Act, 2024-25?

If the Supreme Court undertakes a judicial review of the Waqf (Amendment) Act, 2024-25, several potential outcomes are possible. The Court could, though it is unlikely, completely uphold the amendment by accepting the government's justification that it is a necessary regulatory measure to combat mismanagement and unlock the economic potential of waqf properties for the community's benefit. A more probable outcome is that the Court may strike down the most constitutionally offensive provisions while leaving the rest of the act intact, using the principle of severability. For instance, it could invalidate the clause allowing the central government to appoint the CWC Chairperson but retain provisions mandating digitalization of records. Alternatively, the Court may employ the tool of "reading down" the provisions, interpreting them in a narrow way to save their constitutionality, such as reading an implicit requirement that the CWC Chairperson must be from the Muslim community. In the most drastic scenario, the Court could declare the entire amendment act unconstitutional, primarily on the grounds of legislative competence or for violating the basic structure of secularism, thereby reinstating the legal framework of the Waqf Act, 1995, in its pre-amended form. The final judgment will set a critical precedent for the limits of state power in regulating religious endowments.

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