Author- Piyush Mani Tripathi, Indian Institute of Legal Studies, Siliguri

A major change in the legislative and administrative structure controlling waqf properties in India has been brought about by the Waqf (Amendment) Act, 2025. Alongside this legislative change, a number of issues and complaints have surfaced. With analysing  the existing Wakf Act of 1995 and the Waqf (Amendment) Act of 2025, this article tries  to critically analyse the evolution of waqf law from the pre-independence to the post-independence era. The study investigates how the 2025 amendment was required due to the ongoing abuse and poor administration of waqf properties. It identifies the major changes made by the government and assesses the justification for them by comparing the 1995 and 2025 Acts. Additionally, the article explores the government’s arguments in favour of the amendment, as well as the criticisms raised by legal scholars, activists, and minority groups. In doing so, it contributes to the broader discourse on legal reform and minority rights within the framework of India’s pluralistic legal system.

KEYWORDS-  Waqf Amendment 2025 , Survey, Muslim, Waqf.

The Arabic word Waqufa, which means to confine, restrain, or hold, is the root of the English word Waqf. Legally speaking, it refers to the permanent dedication of movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable. According to an Islamic story about a Jewish man, Waqf’s roots can be found in the time of Prophet Mohammed. The man reportedly made the decision that Prophet Mohammed would inherit his seven orchards in Madina upon his death. Prophet Mohammed seized the orchards after the man’s passing and declared them to be Waqf, for public use. This meant that the property could not be sold, given as a gift, or otherwise used for anything other than the public good.

HISTORICAL DEVELOPMENT OF WAQF IN INDIA

The evolution of the Waqf system in India can be broadly categorized into two main  phases:

1. Pre-Independence Development of Waqf Law in India - 

•  Status of  Waqf During Muslim Rule in India -

The concept of Waqf was introduced in India Along with the establishment of Muslim rule. Historical references of waqf were found during the Delhi Sultanate, Sultan Muizuddin Sam Ghauri donated two villages for the maintenance of the Jama Masjid in Multan. 

• Status of Waqf Under British Administration in India-

In the early days of British rule in India, the colonial government largely stayed away from interfering in religious matters. However, over time, they started introducing laws to regulate religious and charitable endowments in India. For instance the Charitable Endowments Act of 1890, which focused on the supervision of charitable property.

A major turning point came in 1894, when the Privy Council, in the case of Abdul Fata Mohammed Ishak v. RussomoyDhur, held that family Waqfs (WaqfalalAulad) with limited or symbolic charitable intent were invalid. This ruling deeply upset the Muslim community. In response, and with support from leaders like Mohammed Ali Jinnah, the British government passed the WaqfValidating Act of 1913, which legally recognized all Waqfs—including those created for family benefit—so long as they included a charitable or religious purpose, even if indirectly.

Notwithstanding such acknowledgement, abuse and mismanagement of Waqf assets by some Mutawallis(custodians) became increasingly a concern. It was to meet this that the Mussalman Wakf Act of 1923 was promulgate, that it is now obligatory for Mutawallis to maintain proper financial accounts and books to enhance accountability and transparency.

2. Post-Independence Development of Waqf Law in India

The Mussalman Wakf Act 1923 continued to govern Waqf even after India achieved its independence in 1947. However, with time, several issues related to governance and misuse of Waqf properties arose. The government enacted the Wakf Act of 1954 to deal with these problems. The administration of properties left behind by Muslims who had migrated to Pakistan at the time of partition was one of the primary reasons for the enactment of this Act. By this, the Charitable Endowments Act of 1890, the Religious Endowments Act of 1863, and similar laws were abolished by the 1954 Act. The basic issues with the Waqf administration were not solved even after the amendments of the Act in 1964 and 1969, which made it more effective. Due to persistent problems, the Waqf (Amendment) Act of 1984 was enacted. The amendment had been mainly rooted in the report of the Waqf Inquiry Committee, which proposed the establishment of Waqf Tribunals to deal with disputes and suggested increasing the powers of the Waqf Commissioner. But  the 1984 amendment  also faced criticism for giving too much power to the Commissioner(government agent) and greater state interference in  religious affairs. These issues hamper its effective implementation. Consequently, the government brought in a wide-ranging law-the Wakf Act 1995- that consolidated earlier amendments and revoked the 1954 act. The new act brought in a more transparent organization for Waqf’s property management and sought to enhance transparency and efficiency.

After a considerable gap, political debates and administrative challenges led to further demands for reform. This resulted in the enactment of the Waqf (Amendment) Act of 2013, which brought significant changes to the 1995 Act and granted expanded powers to the Waqf Boards for better governance.

1. What necessitated the introduction of the Waqf (Amendment) Act, 2025?

2. What are the major changes brought about by the Waqf (Amendment) Act, 2025?

3. How does the Waqf (Amendment) Act, 2025 differ from the Wakf Act, 1995 in terms of structure, powers, and administrative functions?

4. What are the major areas of legal and administrative conflict arising under the Waqf (Amendment) Act, 2025?

1. To examine the reasons and circumstances that led to the enactment of the Waqf (Amendment) Act, 2025.

2. To analyze the significant legal and structural reforms introduced through the 2025 amendment.

3. To conduct a comparative study between the Wakf Act of 1995 and the Waqf (Amendment) Act of 2025, highlighting their differences in approach, administration, and implications.

4. To identify and discuss the major areas of conflict and concerns—legal, social, or administrative—emerging under the new amendment.

The Waqf institution, established in line with Islamic jurisprudence, has long advanced public welfare through charitable endowments. The administration of India has consistently had to deal with issues like poor management, unlawful encroachment, and a dearth of judicial oversight. Despite the wakf  Act of 1995’s attempt to unify waqf administration under State Wakf Board, scholars criticised the excessive quasi-judicial procedure under Section 40 that allowed boards to classify property as waqf without court intervention. Necessity of judicial supervision and clarity in waqf creation was highlighted by later studies. A number of these problems were resolved by the 2025 Amendment Act, which required a written waqf deed, eliminated the waqf-by-user doctrine, and transferred adjudicatory authority from the Waqf Board to the District Collector.These changes reflect scholarly calls for reducing arbitrary claims and enhancing transparency. However, concerns about executive overreach and inadequate community participation remain debated among jurists.

Using primary and secondary sources, this study employs the doctrinal method to examine the development of waqf in India and the ongoing disputes brought on by the waqf (Amendment) Act 2025. Laws, the Wakf Act of 1995, the Waqf (Amendment) Act 2025, sachar committee reports, and relevant parliamentary discussion and case laws  are the examples of primary materials. Secondary sources include academic books, journal, articles, research papers, and official government data.The study critically examines these materials to trace the development of waqf law and assess the implications of recent amendments through a comparative analysis of the 1995 and 2025 legislations.

NEED FOR THE WAQF (AMENDMENT) ACT, 2025

The Wakf Act of 1995 has long governed waqf affairs in India. Even though the Act was changed in 2013 to give waqf boards more authority, a number of problems eventually surfaced, such as title disputes, unauthorised encroachments, abuse of waqf laws, and tensions between communities. The following are the main justifications for the Waqf (Amendment) Act, 2025's introduction: 

1. Ineffectiveness in Achieving Waqf Goals: According to Islamic law, the primary objective  of establishing a waqf is to benefit the community by enhancing the socioeconomic standing of the poor and giving them long-term benefits. The state of the Muslim community .On the other hand the condition of the major Muslim community in India indicates differently The 2011 Census found that Muslims' literacy rate was 68.5%, which was lower than the national average of 74%, indicating a major educational gap. Not only have these Muslims continued to suffer from poverty and economic marginalization. If you see the Sachar Committee Report (2006), among the largest landholding institution waqf is the third-largest land holding institution in India after the Defence and Railways, and the largest private land holding institution. Despite this, waqf properties are poorly managed and often misused by mutawallis for personal gain, thereby defeating the purpose of waqf.

2. Incompetence in Timely Survey of Waqf Properties: The Survey Commissioner, appointed under Section 4 of the Wakf Act, 1995, has often failed to conduct timely surveys. This has led to unreasonable delays and disputes due to improper records. For instance, in Gujarat and Uttarakhand, the survey of waqf property is yet to be commenced, while the 2014 Uttar Pradesh survey remains to be carried out.

3. Encroachment on Others’ Property by Misusing Waqf Law: In few cases, the power conferred under Section 40 of Waqf Act has been abused by waqf boards,1995, by which they can ascertain whether a property is waqf or not. This goes against the principle of nemo judex in causa sua (no one to act as judge in his own cause), to unjust encroachments and conflicts.

4. Absence of Judicial Review: According to the wakf Act, 1995 the decisions made by Waqf Tribunals are final and cannot be appealed in higher courts. This goes against the definition of judicial review, in Indira Gandhi v. Raj Narain(1975), which is a component of the basic structure of the constitution. The need for waqf legislation reform grows essential as a result of shortcomings such as poor management, unclear judicial decisions, lack of accountability, and growing conflicts. The waqf (Amendment) Bill, 2024 was introduced by the NDA administration in order to address these problems. 

COMPARATIVE ANALYSIS OF THE WAKF ACT, 1995 AND THE WAQF (AMENDMENT) ACT, 2025

1. The ways of formation of waqf and condition  to Become Waqif:Under the Wakf Act, 1995, waqf could be created in three ways: (i) waqf by user,(ii) waqf by declaration,  and (iii) waqf by endowment. The term  of waqf by user—recognizing a property as waqf based on its long-term religious use—has been removed under the Waqf (Amendment) Act, 2025. Now, only waqf by declaration and waqf by endowment are valid modes of creation. Additionally, the 2025 Amendment introduces a new eligibility condition for becoming a waqif the person must be a practicing Muslim for at least five years, a criterion absent in the 1995 Act. Furthermore, the Amendment ensures that in private waqf (waqf alal aulad), the inheritance rights of female heirs cannot be denied—an express protection not provided in the earlier Act.

2. Waqf Property Identified as Government Property: The Wakf Act, 1995 lacked clarity regarding government properties that were illegally declared as waqf. The 2025 Amendment addresses this gap by inserting Section 3C, which clearly states that any government property declared as waqf before the commencement of the Act shall not be considered waqf property. 

3. Power to Decide Whether a Property is Waqf or Not: Under Section 40 of the Wakf Act, 1995, if the waqf board had reason to believe that a property was waqf, it could initiate an inquiry and decide the matter on its own. This provision effectively allowed the waqf board to act as judge in its own cause. The Waqf (Amendment) Act, 2025 has omitted Section 40 entirely, thereby removing this power from the waqf boards.

4. Survey of Auqaf:Under Section 4 of the Wakf Act, 1995, the State Government was empowered to appoint a Survey Commissioner or Additional Survey Commissioners to conduct surveys of waqf properties. However, under Section 3C(2) of the Waqf (Amendment) Act, 2025, the power to conduct waqf property surveys has been shifted to the District Collector. The Collector is now responsible for determining whether a property is waqf or not and must submit a report to the State Government accordingly.

5. Composition of the Waqf Board: In the previous Act of 1995 under Section 14 there is no such mandatory  provision of eleven  members only  in state  wakf board and there is no mandatory provision for two non Muslims members. In contrast, the Waqf (Amendment) Act, 2025, empowers the State Government to nominate members directly. It mandates that the State Wakf Board shall consist of not more than 11 members,  and also imposed major  conditions that in the State Wakf Board there must be at least two members  women, and At  least two non Muslim members.

MAJOR AREAS OF CONFLICT ARISING UNDER THE WAQF (AMENDMENT) ACT, 2025

1. Removal of ‘Waqf by User’: The Waqf (Amendment) Act, 2025 removes waqf by user—a concept recognized under the 1995 Act, where long-term religious use of a property could establish it as waqf without formal documentation. The government justifies this removal by stating that property should not be declared waqf merely based on usage without proper registration or legal documentation. However, the opposition argues that this move aims to weaken waqf institutions and may result in the loss of historically recognized religious sites.

2. Power Given to the Collector to Conduct Waqf Survey: In Section 3(C)(2) of the 2025 Amendment, the District Collector is empowered to survey waqf properties and determine whether or not a property is waqf, and submit the same to the State Government. The move is justified by the government citing the Collector's powers over revenue and land issues, which would increase transparency and record-keeping. Critics, however, view this as over-delegation of quasi-judicial powers to executive authorities.

3. Eligibility to Become a Wakif: According to the 2025 Amendment, in order to assign property as waqf, a person must have been a practicing Muslim for at least five years. Because there are no such restrictions imposed on other communities  while donating property for religious or philanthropic purposes, opponents claim that this violates Article 14,25 and 26. Additionally discriminates against recently converted Muslims but the government feels that the latter fall within the ambit of Article 25(2) under which the state controls secular activity associated with religious practice, including economic and property-related subjects.

4. Mandatory Inclusion of Non-Muslims in Waqf Boards: Section 14 of the Amendment mandates the inclusion of at least two non-Muslim members in the State Wakf Board. While the government argues that this guarantees transparency and accountability. The opposition defends it amounts to interference in the religious affairs of the Muslim nation. They argue that it violates Articles 25 and 26 of the Constitution, which provide freedom of religion and the right of religious denominations to manage their own affairs.

The institution of waqf has historically played a major role in the socioeconomic well- being of Muslim community.  According to the Islamic religion, the main objective of Waqf is to promote social justice and add to the poor. In an effort to achieve the main objective of Waqf  with modern administration,  standards ,legal  Amendments have  been implemented in the past. The declared goals of the waqf (Amendment) Act 2025 were to increase accountability, efficiency and transparency in the administration of Waqf holdings. It seeks to end long standing issues such as inadequate paperwork or records, postponed surveys, and misuse of Waqf land. Despite its reformative intentions, the Act has received a lot of criticism. Critics claim that it infringes upon the fundamental rights guaranteed by Articles 14, 25, and 26 of constitutions of India. Problematic provisions- like limiting prohibitions on who can form a waqf, removal of waqf by user, and integration of non- Muslims into waqf boards-have been regarded as restrictions on religious liberty.

This legislative breakthrough has therefore begun wider discussion of the balance between state regulation and religious freedom. With several petitions pending, the constitutional validity of the Act is now susceptible to judicial review by the Supreme Court. 

In view of the historical purpose of waqf and the contemporary legal problems under the Waqf (Amendment) Act, 2025, the following key suggestions are proposed:

1. Maintain Constitutional Integrity: Reforms made through the amendment should align with constitutional values, namely those safeguarding religious freedom and equality. The primary focus should remain on community well-being and effective administration of waqf property.

2. Promote Balanced Reforms: Rather than repealing the entire Act due to certain controversial clauses, a balanced approach should be adopted. All contradictions or constitutional matters are settled by targeted amendments, which render both the interests of the state and the rights of the community. This would be to have social cohesion and institutional trust.

Primary Sources -

1. The Wakf Act, No. 43 of 1995, India Code (1995).

2. The Waqf (Amendment) Act, No. 22 of 2025, India Code (2025).

3. The Mussalman Wakf Validating Act, No. 6 of 1913, India Code (1913).

4. The Mussalman Wakf Act, No. 42 of 1923, India Code (1923).

5. Sachar Committee Report, Social, Economic and Educational Status of the Muslim Community of India, Prime Minister’s High-Level Committee (2006).

Secondary Sources –

Case Law

1. Abdul Fata Mahomed Ishak v. RussomoyDhur Chowdhury, (1894) 22 I.A. 76 .

2. Indira Nehru Gandhi v. Raj Narain, (1975) Supp. SCC 1.

   
   

Articles and Research  paper-

1. Ministry of Minority Affairs, Waqf Management, available at

https://www.minorityaffairs.gov.in/show_content.php?lang=1&level=0&ls_id=14&lid=14.

2. Press Information Bureau (PIB), Cabinet Approves Waqf Development Initiatives, available at

https://pib.gov.in/PressReleasePage.aspx?PRID=2118261.

3. Ethics Blog, The Development of Waqf Throughout the History of Islam, available at

https://ethis.co/blog/the-development-of-waqf-throughout-the-history-of-islam/.