In a multicultural and constitutionally secular state like India, discussion on religious rights and legal reform is always filled with difficulty. The Waqf (Amendment) Act, 2025, has been a flash point in that discussion. The amendment ostensibly promotes inclusion, transparency, and gender equality in waqf property management. However, the amendment has also incited a series of litigation and public outrage, especially from Muslim organizations, which argued that the law affects their constitutionally sanctioned religious rights under Articles 25 and 26 of the Constitution of India.[1] The question this article seeks to address is whether the Amendment is genuinely a move toward parity and accountability, or is merely two benefits of a process for encroaching on the autonomy of a religious minority.
Background
Waqf, an Islamic charitable endowment, has been present in India since the medieval period, and has been primarily used to support religious, educational, and charitable institutions in the Muslim community. The current legal framework regulating waqf properties was cemented with the Waqf Act, 1995. The Waqf Act was implemented to formalize the administration of waqf property by establishing a Central and State Waqf Boards consisting of a majority of members from the Muslim community. Serious issues of management of waqf properties, including the general mismanagement of waqf properties, wrongful sale of waqf assets, encroachment of waqf properties, no audits, and a systematic exclusion of women in the administrative and beneficiary parts of waqf properties, have plagued the implementation of the Act over the decades. Many government reports, for example, the Sachar Committee Report (2006) illustrated that institutions in the Muslim community, including Waqf Boards, exhibited a serious deficiency in administrative competence and transparency. Then there was the Joint Parliamentary Committee on Waqf Report, of 2011, headed by K. Rehman Khan, which detailed the levels of encroachment and financial indiscipline in waqf administration.These recurring themes laid the groundwork for the government to push for reforms that could align waqf institutions with constitutional values while addressing management inefficiencies.
The 2025 Amendment, while building on two unsuccessful attempts to reform the Waqf Boards, which were also amended in 2013, provided a required governance change to the structure of waqf institutions which incorporated measures of accessibility, transparency and inclusivity for legal access so that the waqf boards can now function in a legitimate governance capacity.
Major amendments and rationale
Non-Muslim Representation in Waqf Boards
Arguably the most contested amendment of the 2025 Amendment, is the mandatory requirement that at least 1 non-Muslim individual be appointed to the State Waqf Boards. Proponents state that, due to waqf property being a type of public property that is often misappropriated, a non-Muslim member will add an outsider’s impartiality. Opponents advance the position that dual representation undermines the regime of religion. Waqf Boards are not just property facilitators, they are also institutions with religion and charity as two components governed by Islam. The primary issue is whether a non-Muslim member can understand and embrace the doctrine of Islam, to an extent, in making administrative decisions.
There is also a majoritarian control concern expressed by resistance, parties and Muslim scholars. While the state has stated that the election of a non-Muslim member is a purely token position for an otherwise wholly transparent process, the lack of any clear statement of their powers or influence, in combination with the existing distrust of the community has resulted in a number of petitions in Supreme Court challenging the constitutionality of that provision.
Women’s ownership rights and representation
One issue that was received especially well, was the ability for women to be included as both participants by way of administration, as well as possible beneficiaries.The Amendment requires that women, especially Muslim women, must be provided representation on Waqf Boards, and they cannot be unreasonably denied waqf benefits (such as scholarships, housing, pensions, etc.). This is not only a step forward constitutionally but also an endorsement of the constitutional progression of Article 15(3), which allows the State to make special provisions for women, and endorses the development of gender equality as an aspect of constitutional morality in reiteration of judicial precedents.[2]
However, those scholars mention representation alone will not suffice. On boards, if women lack ‘power’ or key portfolios, their representation can become tokenistic. The Act needs to be coupled with rules indicating that representation must not only exist, but that Boards ought to include women in real ways when they establish committees on finance, grievance redressal, education (etc).
High Court Appeals
Another major change is the appeal framework. In the past, parties could only appeal Waqf Board decisions via specialized Waqf Tribunals. The Amendment gives the power for anyone aggrieved, either personally or institutionally, to head directly to the jurisdiction of the High Court. This is seen as democratizing access to justice, but critics assert High Courts are already over-balanced and ill-equipped with the niche knowledge required to address waqf concerns. Further, did moving to courts from tribunals not defeat the whole purpose of having a parallel judicial mechanism for religious purposes in the first instance
The change from tribunals to High Courts brings up the question of federalism. At least some states sensibly, including many from the south like Kerala and Tamil Nadu, cautioned that central intrusion into the functions of state-level Tribunals will seriously undermine cooperative federalism. Legal crooks have warned there must also be a balance and tribunals retained with the limited supervision of the High Court as needed by way of constitutional intuition or some more serious process failure.
Mandatory Audits Digitization
In a nice step toward an administrative overhaul, the Act also requires that waqf must undergo independent audit each year and all waqf assets must be digitized.The aim is to prevent encroachments, ensure proper utilization of revenues, and eliminate ghost properties or beneficiaries.
Concern for states with large quantities of waqf properties (Uttar Pradesh, West Bengal, Maharashtra), as they have voiced concerns that local boards typically do not have the technical personnel to digitise scores of physical records. Independent audits not only require funding, they require training and currently there is no funding program from the centre.
Constitutional arguments
Reading Articles 25 and 26
Articles 25 and 26 of the Indian Constitution provide for rights to freely profess and manage a person’s, or a group’s belief, as well as manage religious institutions. The introduction of non-Muslim members and increased participation of the state would constitute violations of the Articles 25 and 26 freedoms.
In Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P., the Supreme Court held that a religious denomination was free to manage its own affairs unless it breached ‘public order’, ‘morality’ or ‘health’. [3]
In S.P. Mittal v. Union of India, the Court also recognized that secular activities may be regulated by the State, but that regulation does not apply to religious activities .[4]
Therefore, the legal story would be framed by the question: is management of waqf properties a secular activity thus allowing regulation or is it a religious activity and thus regulation is not applicable?
The Balance between Secular control or Religious independence
The Indian model of the state is “principled distance”, in that the state neither totally dissociates or imposes upon occupational autonomy. The state can intervene in limited instances (e.g., Dalit access to temples) and because religious autonomy cannot be completely erased as it intersects in daily life.
By adding non-Muslim members and implementing secular oversight, the state believes they are acting in the public interest. This also creates precedent for the state’s ability to shape religious governance waqf with secular law and potentially influence other minority institutions.
In addition, academic observers such as Faizan Mustafa have raised caveats that while majority groupings may adopt a mask of “administrative efficiency” they must ensure limits to their secular regulation and not replace either cultural homogenization or intrusions upon religious communities.
Comparative Judicial Response
The Supreme Court’s assessment of personal law, and its implications for discrimination, as within Shayara Bano v. Union of India is fairly straightforward, in that personal law is not exempt from the authority of the Constitution. Accordingly, it is possible to similarly argue past state waqf management could be amended, reformed, etcetera if it was an opaque and/or discriminatory religious construct.[5]
As it was with the Supreme Court’s example and reasoning in Indian Young Lawyers Association v. State of Kerala (Sabarimala case), this principle highlights that practices, customs, which are authorised in regard to a religious character hundreds-of-years-old, can be seen in terms of dignity, equality or secular government if they were accessed and practiced without dignity, equality or, secular government or their related present counterparts. The tenor is not extremely dissimilar, but, clearly, the principles of constitutional supremacy must be understood consistently from a religious vantage point.[6]
Policy & Jurisprudential Affects
Transparency and Accountability vs. State Overreach
The Act, for all the good in terms of accountability and transparency based on digitisation, well processes like audit functions in terms of waqf performance, give the government, by the extended nature of grounds of appeal, so much discretion that is inappropriate to the point of can be really disgusting, here there will allow discretion and management will be competed for in respect of politically empowered apparatuses of state interference and the management and governance of religious matters, which could change the already precarious secular governance with respect to a community’s right to, and exercise of, to an already marginalization existed.
Perhaps one could would worry about precedent setting, if one could hate, a religious entity can, state, be controlled by legislation with respect to even one element of property rights and its administration of religious properties, it can be understandably, despicably anxious to suggest the end of their other institutions as run and managed by a minority community where a new historic precedent has already deteriorated.
It is not to say there are not plenty of states established, where legal egalitarianism would exist or attenuate to a larger concern or where it is arguable, that those states, where, legal egalitarianism rested that states should or could look more closely to the adventure of subsumption of a human, cultural individual material cultures and genocide of identity.
Tribunals vs. High Courts
Leaving aside the demonstrable review, it could properly be questioned, whether, the state facilitates High Court appeals with respect to, Weberian-Tribunalized, Shah Waqf Act and, 1974, Waqf Act, was constructively facilitating front-ended access to what was contextually, but superfluously about the Workable delivered, ineffectively, a contextually-based comprehensive, method of resolving culturally-contextual, time-limited adjudication. The High Court ad looks at least by design meant to be more comfortable inhabited spaces for them to engage in the necessary gamification where the various considerations of the dispute meant that even resource deficient, high courts are not as accessible or as equitable a provided a requisite inference for the as was, if and only if, accessible where resource deficient or in other cases and where it was unclear or represented improvements on its intended qualities or we are in a shallowing process bathing in overflow, process.
By the way, on the record, the National Commission for Minorities legal scholars have called for increased funding for, and training of, Waqf Tribunal judges instead of ignoring them altogether. This provides access for poorer litigants and preserves the notion of self-regulation in their religion.
Recommendations: A Positive Policy-Scape
Advisory Role for Non-Muslims: There does not need to be a mandatory inclusion with a decision-making role for non-Muslims to be involved with Waqf Boards in some capacity as an advisor or observer, which achieves transparency without breaking with religious governance.
Preserve Tribunal Function: To the extent that High Court appeals can be limited to issues of constitutional interpretation, the day-to-day disputes and property matters should remain jurisdictional to specialized Waqf Tribunals.
Institutionalise Inclusion of Women: There needs to be a mechanism in place not simply to include women, but to affirmatively create functionality toward portfolio roles and provide them with capacity-building training to enhance their impact.
Central Funding of Reforms: The digitisation of Waqf boards and any audits will require supported implementation in the form of financial clout through the Centre, and potential access to technical assistance from the Centre, given that the state boards are typically starved of resources.
Periodic Review: A requirement for the Waqf boards to provide annual reporting to Parliament as an ongoing mechanism for review and accountability would provide public oversight and allow them to engage with the boards.
Conclusion.
The Waqf (Amendment) Act, 2025 is an intricate piece of legislation seeking to modernise and rationalise the management of religious property. While the Act provides much-needed reforms to women’s rights and transparency, it is also on the knife’s edge of infringing constitutional red lines of self-governing religion. Overall it will be a question of how it will be interpreted by the Courts and its practical application, which necessarily includes an implementation not perceived by the communities or professions as oppressive or too soft. Stakeholders must work collaboratively to ensure reforms are implemented in a manner reflective of constitutional values and communal harmony, whichever of these stakes to look at.
Genuine reform must involve democratic engagement for consultation with the affected community to prevent a violation of pluralistic Indian secularism, and not to erode religious governance out of the constitutionally stated ideals of justice, liberty, equality, and dignity, but rather to lift it to realised constitutional ideals.
[1] India Const. arts. 25 & 26.
[2] India Const. art. 15, cl. 3.
[3] Sri Adi Visheshwara v. State of U.P., (1997) 4 SCC 606, 615 (India).
[4] S.P. Mittal v. Union of India, (1983) 1 SCC 51, 65 (India).
[5] Shayara Bano v. Union of India, (2017) 9 SCC 1, 15 (India).
[6] Indian Young Lawyers Ass’n v. State of Kerala, (2018) 10 SCC 1, 45 (India).
Author: Saniya Sayyed
Juris Centre 