India's Waqf Controversy

The morning the Supreme Court was set to pronounce an interim order on the cluster of petitions challenging the Waqf (Amendment) Act, 2025, felt less like the settling of a routine legal matter and more like a civic reckoning: on one side a government that says decades of mismanagement and mass encroachments on waqf assets demand urgent, structural reform; on the other, a constellation of community bodies, parliamentarians and legal scholars arguing that the particular reforms chosen by Parliament do more than tidy up governance, they threaten the constitutional protections that allow minority religious communities to manage their own affairs. That tension between reforming governance and guarding religious autonomy is the tightrope on which the entire controversy walks, and the court’s September hearing (scheduled for September 15) may well decide how India balances those twin imperatives in the years to come. 

To understand why the stakes are so high, you have to see both the administrative mess the government points to and the constitutional architecture advocates fear will be eroded. Government reports and digitisation exercises suggested that tens of thousands of waqf properties were either unaccounted for or held in questionable circumstances; the central argument in favour of reform is strikingly simple: waqf lands intended for public and charitable purposes have been siphoned off by private hands, wilfully encroached upon, or poorly managed, and without a modern, transparent governance regime these assets will never benefit the communities they were meant to serve. The Waqf (Amendment) Act, 2025 was pitched as the corrective: clearer definitions, new powers for recovery, professionalisation of boards and mechanisms to collar encroachment. But ‘professionalisation’ and ‘recovery’ are technical words that, in law and politics, carry freight: who counts as a professional; who gets to exercise recovery powers; and under what procedural safeguards? Those are precisely the questions being asked and litigated now. 

The Act’s critics are not incidental dissenters. The petitions were filed by prominent political figures and representative bodies including the All India Majlis-e-Ittehadul Muslimeen (AIMIM), the All India Muslim Personal Law Board (AIMPLB), several imams and MPs and they have framed their legal challenge in constitutional terms. The petitioners’ central contention is that certain provisions of the 2025 Act intrude on the essential character of waqf as an instrument of Muslim religious and charitable life and, by placing significant control in the hands of state-appointed officials or by subjecting waqf disputes to ordinary limitation periods, risk depriving Muslim communities of the very protections Articles 25 and 26 of the Constitution are designed to guarantee. In public remarks that crystallise this concern, AIMIM president Asaduddin Owaisi described the Act bluntly as “unconstitutional,” a line which has become a refrain in the protests and legal pleadings that followed the Act’s passage. 

To the careful reader this is not simply a statutory skirmish but a constitutional conversation about the nature of minority institutions in a plural democratic republic. Article 25 protects freedom of conscience and free profession, practice and propagation of religion; Article 26 protects the rights of every religious denomination or any section thereof to manage its own affairs in matters of religion. Those rights, however, have never been absolute; the state may regulate in the public interest and may, for instance, intervene where a religious practice conflicts with public morality, public order, or health. The legal work in the current petitions is therefore to identify whether the amendments remain within permissible regulation for legitimate public purposes such as preventing encroachment and mismanagement or whether they transgress into structural changes that alter the “essence” of waqf governance in a way the Constitution will not permit. The law is not purely textual here; it is institutional and historical, and courts routinely ask whether a legislative measure is proportionate, whether it minimally intrudes on religious freedom, and whether adequate procedural and substantive safeguards are present. 

The petitions, accordingly, attack a cluster of provisions each technically narrow but collectively capacious that, petitioners argue, cumulatively amount to an unconstitutional re-engineering of waqf management. Among the most contested clauses are the insertion of non-Muslim members into State Waqf Boards and the novel requirement that a person must be a practising Muslim for five years before they can create a waqf; the application of the Limitation Act to waqf disputes (effectively closing historic windows of restitution for long-standing encroachments); the enabling of district collectors and executive officials to take decisions that were traditionally within the domain of boards and courts; and the invalidation of claims of waqf where the property is an archaeological or protected monument under the Archaeological Survey of India (ASI). Each of these touches on a different nerve: the first speaks to self-management and identity, the second to the nature of dedication in Muslim law, the third to the capacity of boards to vindicate long-standing rights, and the fourth to the interplay between heritage conservation and religious dedication. The cumulative effect, critics say, is a serious re-allocation of control away from the communities entitled to manage waqf resources. 

Those who defend the Act both within government and among some supporters outside it advance equally persuasive, if very different, points. They point to the sheer scale of alleged mismanagement: reports have documented thousands of contested properties and, in many instances, the diversion of waqf incomes from charitable to private uses. They argue that a modern regulatory framework requires technical expertise lawyers, auditors, land-records specialists and that a narrow band of traditional custodians, often ill-equipped to navigate land law, income tax, municipal regulation and large commercial leases, cannot be the sole guardians of assets that have become complex financial instruments. The government’s position is that certain tools including a professionalised board with broader membership and executive powers to order recovery are necessary to ensure assets are used for their intended charitable purposes and are not lost to encroachment or neglect. That argument has a moral clarity: public assets devoted to education, care for the poor, and public welfare should not, in practice, lie dormant because of administrative inaction or legal lacunae. It is not hard to see the public policy appeal. 

Yet policy appeal and constitutional soundness are different things; the former is persuasive, the latter requires scrutiny. One of the difficulties in this debate is empirical: the digitisation of waqf records the government’s WAMSI project has itself been criticised for inconsistencies and gaps, and where evidence is patchy it is easier for opponents to claim that heavy-handed fixes will do more harm than good. The judicial role is to examine not only the ends but the means. A regime meant to curb corruption that brings arbitrary power without process will, in the long term, do more damage to institutional trust than the malaise it purports to cure. This is where subtlety matters: a reform that empowers collectors to remove encroachments but binds them to clear, appealable procedures and to judicial oversight will be less constitutionally fraught than one that leaves room for discretionary, unreviewable bureaucratic action. The petitions, therefore, are not merely about whether the goal of preventing misuse is legitimate few would dispute that but whether the particular legal architecture the 2025 Act adopts does so in a way that respects the constitutional balance. The court will have to ask whether Parliament’s exercise of power intrudes upon the core of the freedom to manage religious affairs, and if it does whether that intrusion can be justified as a proportionate means to an important public end. That proportionality inquiry is the fulcrum of many modern constitutional adjudications, and the waqf challenge will be a test case of how vigorously the courts protect minority institutional autonomy in the present political and administrative climate. 

The debate also raises questions about federalism and the locus of authority. State Waqf Boards have historically been creatures of state law and located within the administrative fabric of each state; the Amendment centralises certain powers and creates mechanisms that critics argue effectively subordinate state boards and expand executive reach. If the Act’s drafters were concerned with uniformity and professional standards, the counterargument is that federal diversity does not automatically translate into incompetence it translates into plural approaches and local accountability and that reformers should proceed by strengthening, not hollowing out, institutional frameworks that allow minority communities to have a say in their own affairs. This is not purely academic: the way powers are allocated affects who will recover encroached land, who will control leases and who will have the final say on how funds are used. Practical stakes matter, and they matter to poor families who rely on waqf-run schools, to small vendors who operate on waqf lands, and to communities who see these assets as part of their social fabric. 

Beyond the immediate statutory text, the litigation invites a broader civic conversation: how should a secular state protect minority institutions while also ensuring transparent use of communal assets? Is there a middle path where independent auditors, clear titular records, and faster legal processes can coexist with a governance structure that respects the community’s control? Comparative examples are instructive: many countries that respect religious pluralism also subject religious endowments to reporting requirements, audits and public accountability while carefully reserving core matters of religious governance to the community. Those models suggest practical, intermediate solutions targeted transparency measures, time-bound authority to recover encroachments with immediate judicial review, and capacity-building for boards that could achieve the public interest goals without sweeping changes to the character of waqf institutions. 

For lawyers and compliance officers, the litigation is a reminder that statutory reform rarely solves institutional deficits by itself: successful implementation requires investment in capacity, training, clear procedural safeguards and robust dispute-resolution mechanisms. For legal students, the case offers fertile ground to study constitutional doctrines of minority protection, the limits of parliamentary power, and the articulation of proportionality in Indian jurisprudence. For business owners and land lawyers, the shift underscores the importance of title due diligence: transactions involving waqf lands will attract heightened scrutiny, and legal uncertainty during transition phases may mean that market participants need to proceed with caution for instance, insisting on clear indemnities, escrow arrangements and judicially insulated title assurances. 

The politics of the debate cannot be ignored either. Public protests and strong rhetoric have accompanied the Act’s passage, and opponents fear the law will be used selectively. Supporters insist its design is neutral and aimed at transparency. The legal process is the corrective to intemperate politics: courts can test legislative means against constitutional limits, and in doing so, can also offer a calibrated vision of how the state can both protect and regulate minority institutions without subordinating them. A cautious optimism is warranted: the Supreme Court’s engagement with interim relief, stalls and orders that maintain status quo on critical appointments and de-notifications suggest an institutional reflex to prevent immediate upheaval while the substantive arguments are considered. The petitions will force the government to defend not just policy goals but also the particulars of statutory design; and that is as it should be in a robust democracy where the rule of law is the ultimate arbiter. 

Whatever the court’s ultimate decision, the episode should produce lessons for legislators and administrators: legal reform of religious endowments must be participatory, evidence-based and respectful of constitutional entitlements; it must be implemented with technical supports rather than merely top-down imposition; and it must offer clear legal processes that insulate decisions from arbitrariness. In the absence of those features, even the most well-intentioned reform will be suspect. The Waqf (Amendment) Act litigation, therefore, is not just a contest over statutory text; it is a test of democratic process and constitutional fidelity. It asks whether India’s democratic institutions can both reform and respect, modernise and preserve, wrestle with corruption while honouring pluralism. The answer will not be found in slogans or protests but in careful judicial reasoning that weighs the public interest against entrenched rights, that recognises the need for effective administration without erasing the protective architecture the Constitution builds around minority institutions. 

As the judiciary weighs these factors, the public conversation should move from polarised rhetoric to practical proposals: greater transparency in waqf accounting; expedited, specialised tribunals for waqf disputes; capacity grants for state boards; sunset clauses on extraordinary executive powers; and judicial review guarantees for all executive action under the Act. Those are not palliatives; they are design features that can make reform sustainable, just and constitutionally sound. The final, and perhaps most important, lesson for India’s legal and political leadership is this: laws governing faith communities must be crafted with a sensitivity that transcends immediate political advantage, because while assets may be material, the meanings invested in them are symbolic and communal. The Constitution protects both the pocketbook and the pilgrimage; balancing those protections ensuring that waqf lands serve the poor while the rights of the communities that created them remain intact is the delicate but necessary work of a mature constitutional order. 

In the end, the Waqf Act litigation invites us to ask not merely who wins or loses this round, but what kind of polity we intend to be: one that trusts its institutions to produce reform through dialogue, evidence and law; or one that substitutes expediency for deliberation. The Supreme Court’s forthcoming orders will answer questions of immediate legality, but the larger, normative question is for the entire republic to answer whether reform can be reconciled with respect for religious freedom in a way that leaves intact both the public interest and constitutional dignity.