- Mr. Fahas Abdulla B.A.LL.B, Jamia Millia Islamia

The Waqf has returned to the public conversation following the passage of the Bill by both Houses of parliament after contentious discussions. The measure was approved by the Rajya Sabha with 128 members voting in favor and 95 against. Early on Thursday, it was approved by the Lok Sabha with 288 lawmakers in favor and 232 against. The President signed the Waqf (Amendment) Act, 2025 into law on Saturday, despite widespread protests by opposition parties and Muslims.

Opposition parties fiercely opposed the Bill, calling it "anti-Muslim" and "unconstitutional." The Act is also considered as a “Breach of trust” with the Muslim community by the state. The government countered that the "historic reform" will help the minority community.

This article highlights the key areas of dissatisfaction among the Opposition parties, AIMPLB and other stakeholders regarding the committee's report. The article analyses the provisions of mandatory inclusion of non-Muslims on waqf boards, the delegation of survey authority to the collector, and the introduction of a five-year faith test for donors as the three major contentious aspects of the bill.

1. Inclusion of Non-Muslims in the Management  

Under the existing Waqf Act of 1995, state governments and Union Territories establish waqf boards to oversee waqf properties within their jurisdiction. According to the statute, these boards consist of both nominated and elected members. The election is conducted through an electoral college, where a minimum of one and a maximum of two Muslim members are chosen from among the mutawallis, MPs, MLAs, and State Bar Council members. All positions on the board are reserved for members of the Muslim community. The state government is required to appoint one Muslim candidate for each designated position, including professionals with expertise in town planning, business management, social work, finance, revenue, agriculture, or development activities, along with an acknowledged theologian and a government officer of at least the rank of Joint Secretary. Additionally, the 1995 Act mandates that elected members must outnumber nominated members, ensuring that the board remains independent of political influence. The Supreme Court has also emphasized that elected members should outweigh nominated members. In essence, the Waqf Act of 1995 guarantees that board members must belong to the Muslim community and that the community retains autonomous control over waqf properties.  

This provision aligns with the rights granted to religious communities under Article 26 of the Indian Constitution. Other religious and endowment laws, such as the Religious Endowments Act of 1863, the Madras Hindu Religious and Charitable Endowments Act of 1951, the Tamil Nadu Hindu Religious and Charitable Endowments Act of 1959, the Hindu Religious Institution and Charitable Endowments Act of 1997, Section 3 of the Uttar Pradesh Sri Kashi Vishwanath Temple Act of 1983, the Shri Jagannath Temple Act of 1955, and the Sikh Gurdwaras and Religious Endowment Act of 1973, all uphold the principle of autonomous community control over religious properties.  

However, Section 10 of proposed Wakf Act 2025 removes the provision for electing board members and significantly weakens the rights of the Muslim community by mandating the inclusion of non-Muslims on the board. The new Act states that only members appointed by the state government—i.e., nominated members—would serve on the board. As a result, state officials would have the power to appoint all 11 members, effectively eliminating community representation and independent management.

Election is a fundamental aspect of the Waqf Act, rooted in a democratic process. Eliminating elections from the constitution of the State Waqf Board and replacing them entirely with nominations would contradict the democratic framework. The government claims that the bill aims to address flaws and modernize waqf management. However, genuine reforms typically involve revisions that enhance, rather than dismantle, democratic processes. This raises a critical question: how can real reform take place when the board’s democratic structure is removed and replaced with a government-nominated body?  

The proposed bill stipulates that all members will be "nominated" by the state administration, effectively undermining the board’s independent and democratic functioning. Since nominated members are political appointees, they are more likely to act in alignment with the government’s interests, making the board susceptible to indirect state control.

2.Five-Year Faith Test for the Waqif/Waqf Donor  

A waqif is an individual who dedicates their property as waqf. Under Islamic law, there is no requirement for a waqif to be a Muslim. Given India’s history of inter-community exchanges, it is common for people of different faiths to visit and donate property for other religious purposes. Recognizing this secular tradition, the Waqf Act of 1995 allows any person to be a waqif.  

However, the proposed bill seeks to delete this provision and replace it with a requirement that the donor must have been "practicing Islam for at least five years." This clause would bar non-Muslims, recent converts to Islam, and individuals who have not practiced Islam for the specified period from dedicating their property as waqf. No logical explanation has been provided by the ministry for this change, which appears arbitrary and unjustified.  

Moreover, this provision directly conflicts with other legal frameworks, such as the Muslim Personal Law (Shariat) Application Act of 1937 and the Indian Contract Act of 1872. Sections 3 and 4 of the Muslim Personal Law Act establish that any person who satisfies the prescribed authority that they are a Muslim, is competent to enter into a contract under Section 11 of the Indian Contract Act, 1872, and is a resident of India, has the right to apply Muslim personal laws which includes waqf. This aligns with Article 25 of the Indian Constitution, which safeguards an individual's right to profess, practice, and propagate their religion.  

Additionally, the proposed restriction discriminates against new converts to Islam. Upon conversion, an individual becomes a full member of their new religious community with equal rights and responsibilities. Conversion itself is a lawful act and does not alter an individual’s property rights. Since conversion is a personal decision and ownership is a private right, public law should refrain from interfering in individuals' right to use or transfer their property. This amendment not only curtails individual freedom but also imposes unnecessary limitations on a person's right to manage their own assets as they wish.

3. Survey Authority to the District Collector  

Under the current Waqf Act of 1995, the state government is required to appoint a survey commissioner to conduct a survey of waqf properties within the state, and this appointment must be made within three months of any vacancy. However, the Act removes this provision and instead grants the district collector the authority to act as the survey commissioner.  The district collector, as a member of the executive branch, is directly linked to the government. This raises concerns about impartiality, as it violates the fundamental principle of natural justice that no one should be a judge in their own cause. Political interference is often exerted on district administrations, particularly in cases involving government land acquisition. 

Allowing the collector to serve as an arbitrator in disputes where the government itself is a party compromises the neutrality of the process and increases the risk of biased decisions.  The Supreme Court, in Uma Nath Pandey v. State of U.P., underscores the importance of natural justice, stating:  "Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice." 

Another contentious provision in the proposed bill is the retrospective application of Section 3C. According to the Ministry of Minority Affairs, the bill states:  "As per the Bill 2024, Section 3C shall have retrospective effect. Any government property identified or declared as waqf property, before or after the commencement of this Act, shall not be deemed as waqf."  This clause introduces significant ambiguity regarding the limitation period for identifying waqf properties. More concerningly, the retrospective effect allows the government to claim any waqf property as government property, even if it has already been determined as waqf land. The insertion of the word "retrospective" effectively unsettles established legal decisions, by reopening previously resolved matters and leading to social unrest. Such a provision not only exceeds legal boundaries but also threatens the security of waqf properties and the communities that depend on them. Also, the Sachar Committee Report had already highlighted widespread misappropriation of waqf properties by government agencies, and the new law risks exacerbating this trend.

The omission of overriding effect and the arbitrary application of limitation act on Waqf will weaken its legal immunity against misappropriation while all other religious properties enjoy such legal cover.