Scope of Judicial Review vis-a-vis Waqf Amendment Act

 

The purpose of this blog is NOT to delve into the impact of the provisions of Waqf act or its amendments. I will ONLY refer to the Act and its amendments to lay down a brief background of the law and for the purpose of drawing a reference to the grounds of challenge by the petitioners before the Hon’ble Supreme Court.

In this Article, I will examine:

      i.         What is the scope of judicial review by Supreme Court under Article 32 over the enactments passed by the Parliament,

     ii.         Presuming that the amendments are putting restrictions on Waqf [which were not present earlier] then, what is the scope of judicial review vis-à-vis Articles 14 and 15 [Right to equality and non-discrimination] and Article 25 and 26 [Right to Freedom of Religion];

But before we proceed to the legal analysis a brief background of Waqf is given below:

HISTORY OF WAQF

I have taken the history of waqf from “Mulla Concise commentary on Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2025” which in my opinion has explained the history aptly and have made minor changes to structure the paras:

Waqf under Muhammedan Law is endowment of property for religious or charitable purposes. It owes its origin to a rule laid down by the Prophet of Islam; and means “the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. As the result of the creation of a wakf, the right of waqif (settler) in the property is extinguished and the ownership is transferred to the Almighty. The manager of the wakf is the Mutawalli, the Governor, Superintendent or Curator. But in that capacity he has no right in the property belonging to the wakf…..”. The origin of institution of Waqf is traced to an utterance of the Prophet. It is said that one Omer Ibn-al-Khattab, on getting a piece of land in the canton of Khyber went to the Prophet and enquired from the Prophet by saying:

“O Messenger of Allah! I have got land in Khyber that which I have obtained more valuable property; what does thou advise me?

The Prophet, Whereupon, is said to have spoken:

“….If thou likest make the property itself inalienable and give the profits from it to the Charity….tie up the corpus (asl or copus) and devote the usufruct to human being and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred and the poor in the way of God”.

In simple terms, it is a very noble act where any Muslim who has a property can make it a Waqf property which means it will belong to God and whose proceeds will be given in charity. The person who has transferred the property ceases to be its owner and Mutawalli will take care of the property. But the property cannot be transferred and will ONLY be used for the purpose of charity. 

LAWS ENACTED IN INDIA FOR WAQF

In India, pre-and-post-Independence, there have been multiple enactments for governing waqf properties.

The British Indian Government enacted following laws to validate and regulate waqf:

1.     Mussalman Waqf Validating Act, 1913 – recognized the creation of family waqfs that ultimately serve a charitable purpose.

2.     Mussalman Waqf Act, 1923 – which introduced mandatory registration of waqf properties and accounting rules.

After independence, the Waqf Act, 1954 was enacted by the Parliament. Key features were:

• State Waqf Boards: It established State Waqf Boards in each state to manage, preserve, and control waqf properties_. These boards became the principal authorities for waqf affairs at the state level, replacing informal or court-supervised management of waqfs.
• Central Waqf Council: In 1964, an amendment to the Act created the Central Waqf Council as an advisory apex body to guide and supervise the functioning of State Waqf Boards_.
• Waqf Surveys: The Act provided for surveys of waqf properties in each state. Survey Commissioners were to identify and catalogue of waqf assets to enable proper oversight.

Some articles suggest that there was lack of transparency in the functioning and management of waqf properties and thus, Parliament made multiple amendments in the Waqf Act, 1954 in 1959, 1964, 1969, and 1984. Despite these changes, waqf administration continued to suffer from corruption, inefficient management, and loss of waqf lands, prompting calls for a thorough overhaul. Thus, the Waqf Act of 1995 was enacted. It is this legislation which has been amended in 2025 and subject matter of dispute.

AMENDMENTS TO THE 1995 ACT IN 2013 AND 2025

The 1995 Act went through an amendment in 2013. The 2013 amendment was motivated by findings that a large portion of waqf assets were idle or illegally occupied, and that Waqf Boards lacked capacity to manage them well. As per the Sachar Committee, only 6% of waqf land was effectively yielding revenue, and over 50% of waqf records were incomplete_.

Subsequently, some articles claim that about 7% of waqf properties were encroached and half had an “unknown status” in records, reflecting ongoing issues in surveys and management_. Another reported controversial incident was when Tamil Nadu Waqf Board in 2022 claimed an entire Hindu-majority village as waqf property based on historical usage. This alarmed many about potential overreach by Waqf Boards. Moreover, within the Muslim community, demands grew for more transparency with respect to management of funds. This set the stage for a fresh round of amendments in 2024–2025.

Key features of 2025 amendment are as under:

·            Renaming the Act: The Act would be retitled the “Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995,” in short “UMEED Act” signalling a focus on unified and efficient administration_.

·            Definition of Waqf: The definition of “waqf” envisages that a valid waqf can only be created by a person practicing Islam for at least five years and owning the property in question_. This requirement aims to ensure the donor’s bona fides and long-term connection to the Islamic faith before dedicating property as waqf. Additionally, the Act seeks to ensure that private family endowments (waqf-alal-aulad) are not misused to disinherit female heirs; any waqf created for descendants must not deny women their rightful inheritance_.

·            Elimination of “Waqf by User”: The Amendment omits the concept of “waqf by user,” which previously allowed property to be deemed waqf simply by long-standing public use for religious or charitable purposes (even without a formal dedication).

·            Survey of Waqf Properties by Revenue Officers: To improve the integrity of waqf property records, the Act shifts the duty of surveying waqf properties from the specialized Waqf Survey Commissioners to the District Collector (or a subordinate revenue officer)_.

·            Broadening the Waqf Boards’ Composition: A significant structural reform is the mandate for more inclusive Waqf Boards and Council. The Amendment explicitly requires inclusion of Muslim women and even some non-Muslim members on the Board. Furthermore, it envisages for representation of various sects and communities within Indian Islam – Sunni, Shia, Bohra, Aghakhani, as well as members of Other Backward Classes (OBCs) among Muslims.

·            Checks on Waqf Board Powers and Financial Provisions: The Amendment would remove Section 40 of the 1995 Act, which empowered Waqf Boards to decide if a property is waqf property_. By omitting this provision, the Amendment curtails the Boards’ unilateral power to label properties as waqf, aligning with the new mutation procedure that involves notice and likely judicial oversight (via tribunals) for such determinations.

·            Reforming Dispute Resolution Mechanisms: The Amendment restructures the Waqf Tribunals that adjudicate waqf disputes. It proposes a two-member tribunal (likely consisting of one judicial member and one expert member) instead of the single-member or three-member structures used previously. Importantly, the Amendment opens a path of appeal from the Waqf Tribunal to the High Court. Under the new provision, any party aggrieved by a Tribunal’s order can appeal to the jurisdictional High Court within 90 days. Under the 1995 Act, tribunal decisions were final (no appeal in civil courts, only possible writ petitions).

·            Application of General Limitation Law: The Amendment deletes Section 107 of the Waqf Act, 1995 which had exempted certain waqf property suits from the application of the Limitation Act, 1963 which effectively allowed the Waqf Board to claim ancient encroachments or lost properties without time-bar. The Amendment will make the Limitation Act applicable to waqf cases, meaning waqf authorities, like any other property owner, must act within the standard limitation periods to recover possession or enforce rights. Additionally, the Amendment proposes omitting Sections 108 and 108A, which dealt with special provisions for evacuee waqf properties (properties left behind by those who migrated to Pakistan) and an overriding effect clause. By applying normal limitation rules, the law intends to bring parity and predictability to waqf litigation.

CONSTITUTIONAL CHALLENGE BEFORE HON’BLE SUPREME COURT

As per the reports available in public domain as on 21.04.2025, petitioners have challenged the amendment primarily on the ground that the amendment is in:

 i.           Violation of Equality (Article 14): The petitioner contends that several provisions of the Amendment are arbitrary, discriminatory, and amount to hostile discrimination against certain groups, thus denying equal protection of the laws. One example cited is the new definition requiring a waqf creator to be a Muslim who has practices the faith for at least five years. It is alleged that this discriminates against recent converts (including members of Scheduled Tribes who may have adopted Islam) by disqualifying them from creating a waqf, a restriction not imposed on other communities’ ability to create trusts. Such a distinction – based on religion or duration of faith – is argued to breach Articles 14 and 15. Additionally, the petition argues that stripping the concept of waqf-by-user and subjecting waqf claims to limitation periods retroactively will disproportionately harm the Muslim community’s property interests, constituting arbitrary and irrational law-making.

ii.           Violation of Articles 25 and 26: A core claim in the petition is that the Amendment interferes with the Muslim community’s rights to freely practice religion and manage religious affairs. Article 25 of the Constitution guarantees individuals the freedom to profess, practice and propagate their religion, and Article 26(b) guarantees every religious denomination the right to manage its own affairs in matters of religion. The petitioner argues that by greatly increasing state control over waqf administration, the law permits excessive governmental and external intrusion into what should be the preserve of the Muslim community. Moreover, having non-Muslim members on Waqf Boards is portrayed as a breach of the autonomy of a religious institution. The petition claims the Amendments “undermine the religious freedoms and rights of Muslims” by curtailing how the community administers its endowments and by imposing secular authority over what were partly religious domains.

iii.           Violation of Article 300A: The challenge also invokes Article 300A, which provides that no person shall be deprived of their property save by authority of law. The petitioner argues that the Amendment Act effectively deprives waqf stakeholders of property rights without adequate justification or compensation, thus falling foul of Article 300A. Two changes are central to this argument: (1) the application of the Limitation Act to waqf property claims, and (2) the removal of waqf-by-user. By introducing standard limitation periods, the law could cause Waqf Boards to lose the ability to reclaim properties that have been in adverse possession by others for a long time. This might bar the recovery of encroached waqf properties, essentially extinguishing the community’s property rights in those lands without any remedy. Similarly, by abolishing waqf-by-user, any religious site or institution that lacked formal waqf deeds might no longer be legally protected as waqf, potentially exposing them to takeover or loss. The petitioner frames this as the state taking away longstanding property rights of the community (albeit through changed definitions) arbitrarily. Although Article 300A allows deprivation “by authority of law,” the argument is that the law here is itself arbitrary and hostile to waqf property rights, and hence unconstitutional.

iv.           Violation of Article 15 (non-discrimination on religious grounds), Article 21 (protection of life and liberty), Article 29 (Protection of interest of minorities), and Article 30 (Right to minorities to establish and administer educational institution): the main plank of the argument is that the Amendment is against the broader constitutional values like secularism, federalism, and fraternity.

SCOPE OF JUDICIAL REVIEW BY THE SUPREME COURT

We have heard this term several times that there are three pillars to Indian Democracy i.e. (1) Legislature, (2) Executive and (3) Judiciary. There is a clear Separation of Powers between these wings but works on a system of “checks and balances”.

Prior to Keshwanana Bharti’s case there were line of judgments which suggested supremacy of the Parliament i.e. the Parliament can pass any enactment including amendment of the Constitution and Courts cannot interfere. This dispute was settled in Keshwanand Bharti wherein it was held that though Parliament has the power to amend the Constitution but the same cannot go beyond the “Basic Structure” of the Constitution.

Therefore, first and foremost, it is important to highlight that Hon’ble Supreme Court can, in exercise of its powers under Article 32, test the constitutionality of any enactment framed by the Parliament. Below, we discuss how and on what grounds an Act can be quashed:

Waqf (Amendment) Act, 2025 cannot be held to be ultra vires for being violative of “Basic Structure”

Some articles suggest that petitioners have taken an argument that the Waqf Amendment is violative of the “Basic Structure” of the Constitution i.e. “secularism” and “federalism”. Thus, liable to be quashed.

The Waqf Amendment Act cannot be held ultra vires for violation of Basic Structure as it is an Ordinary Legislation. The Doctrine of Basic Structure only applies to Constitutional Amendments. There are several judgments of Supreme Court reiterating this principle. Recent being Anjum Kadari v. Union of India [Madarsa Case, 2024] wherein the challenge was to the judgment of Allahabad High Court holding UP Madarsa Education Act 2004 to be ultra vires as being violative of Basic Structure. Supreme Court overruled the judgment of the High Court and affirmed the principle that ordinary law cannot be held ultra vires on broad argument of it being violative of basic structure. The petitioner must show how the provisions are violative of fundamental rights envisaged under Part III of the Constitution of India.   

Principles on which Ordinary law can be held to be ultra vires the Constitution

When assessing an ordinary law such as Waqf Amendment Act, the test is twofold i.e. (1) Whether Parliament has the legislative competence to pass such a law; and (2) Whether the law is violative of any of the fundamental rights.

Legislative Competence of the Parliament

Article 246 grants exclusive powers to the Parliament to enact laws with respect to any of the matters enumerated in List I of Schedule VII. It also grants exclusive powers to the State Legislature to enact laws with respect to any of the matters enumerated in List II of the said Schedule. It further provides that Parliament and State Legislature has the power to enact laws with respect to any of the matters enumerated in Concurrent List III. In case of any conflict, the law framed by the Parliament shall prevail.

Legislative competence of the Parliament to enact Waqf Act and its amendments can be traced to Entry 28 in List III i.e. charities and charitable institutions, charitable and religious endowments and religious institutions. Further, it is nobody’ case that Parliament could not have enacted such a law at all.

Test of violation of fundamental rights

As Parliament has the power to enact law relating to Waqf, we will now examine the basis on which an act can be treated as violative of fundamental rights. However, before we do that, it is pertinent to refer to the following parameters that Court considers while analysing the vires of any statue:

1.      Presumption of Constitutionality: There is a presumption that a law enacted by the Parliament is intra vires and the legislature acted within its authority and in good faith.

2.      An act is not tested on Parliament’s wisdom or policy but only on its constitutionality: The Court is concerned with the constitutionality of the law and not the policy merits i.e. wisdom or necessity of legislation. Hon’ble Supreme Court in State of Bihar v. Kameshwar Singh (1952) has held that it is not for the Court to question whether a law is “unwise” or “unjust”. The Only fact court has to consider is whether it violates the Constitution. Therefore, facts such as reasons for an enactment, or solution it intends to provide, or not being able to address the problem etc. cannot be made subject to challenge.  To explain it from a tax lawyer’s point of view: you cannot challenge Customs Act because it chooses to impose high taxes on import of cars as long as the same rate applies to everyone. An Assessee cannot come to court challenging the tax rate for being arbitrary or high. That is the wisdom of the legislature.

Reasonable restrictions to fundamental rights

No fundamental right is absolute in nature and the legislature can put reasonable restrictions on such fundamental rights. Now without going into the merits of the arguments raised by petitioners, I have referred to Article 14, 15, 25, 26 and 300A and the restrictions which courts have found to be reasonable.

Right to Freedom of Religion – Article 25 and Article 26

Article 25 [extracted below] itself provides for restrictions.

Article 25:

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Hon’ble Supreme Court has interpreted Article 25(2)(a) in several judgments [locus classicus being Commissioner of Hindu Religious Endowments, Madras v. Shirur Mutt] and has consistently followed the principle that legislature cannot touch upon the essential religious practices of a faith but allows the State to regulate the secular affairs connected with religion, especially matters financial, economic, or administrative in nature_.

Similarly, Article 26 [which is extracted below] provides for Freedom to manage religious affairs.

Article 26:

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

Supreme Court recently in Indian Young Lawyers Association v. State of Kerala (Sabarimala Case, 2018) has held that the right to freedom of religion is subject to other fundamental rights. Therefore, rights under Article 26(b) to manage religious affairs could not override the fundamental rights. Judgment also has emphasized that practices derogating from the “constitutional morality” are not protected by Articles 25 and 26. This judgment further highlights that not every management decision of a religious body is a “matter of religion” protected by Article 26.

Equality and Non-Discrimination – Article 14 and 15

There is no dispute that Parliament can make a law for a particular subject or class. The law should not be discriminatory in nature. The test of equality and discrimination is that similarly situated people should have equal laws. Further, if there is a classification between similarly situated people, then there has to be an “intelligible differentia” in making such classification. Therefore, though courts can examine if there is a rationale for enacting a provision, it cannot go into the merits of such policy.

Right to Property – Article 300A

Petitioners have argued that Waqf Amendment especially the application of Limitation Act is violative of Article 300A. For example, if a waqf property was taken over by someone 30 years ago and no action was filed, the waqf is now time-barred from recovering it.

Article 300A not being a fundamental right stands on a completely different footing than compared to a fundamental right when it comes to imposition of “reasonable restrictions” by the legislature. Article 300A is extracted below:

Article 300A:

No person shall be deprived of his property save by authority of law.

Therefore, Article 300A only requires deprivation to be by an authority of law. Thus, to survive the challenge to violation of Article 300A, petitioners will have to show that the law is so harsh that it offends the conscience of the Court which cannot be argued without showing specific facts and without hearing the opposite party to the land dispute. Thus, it becomes more of a question of fact than a pure legal challenge.

CONCLUSION

Hon’ble Supreme Court in exercise of its powers under Article 32 can examine whether Waqf Amendment Act is violative of any fundamental rights. Any time when the vires of an act is under challenge, the court presumes the act to be intra vires and it is for the petitioners to show that the act is clearly and conspicuously violating the fundamental rights. It is the burden of the petitioner to show that the enactment does not fall within any of the reasonable restrictions which courts have held to be valid for fundamental rights envisaged under Article 14, 15, 25 and 26. Thus, the Waqf Amendment Act, 2025 will be judicially scrutinized on the grounds of fundamental rights (Articles 14, 15, 25, 26), but not on basic structure alone, and it will be upheld if the restrictions it imposes are found reasonable and within constitutional limits.