Author: Shivani Singh, Amity University Patna
Abstract
The Waqf Amendment Act, 2025, enacted by the Indian Parliament, seeks to centralize control over Waqf properties and institutions by curtailing the powers of State Waqf Boards. While the Union Government justifies the Act as a step toward transparency and uniform governance, it raises serious constitutional questions. This article critically analyzes the provisions of the Act against the backdrop of Articles 25 to 30 of the Constitution of India, the basic structure doctrine, and principles of federalism. Judicial precedents such as Kesavananda Bharati v. State of Kerala, S.R. Bommai v. Union of India, and T.M.A. Pai Foundation v. State of Karnataka are examined to show that the Act violates minority rights, secularism, and federal balance. Ultimately, the article argues that the Amendment is ultra vires the Constitution and liable to be struck down by judicial review.
Introduction
The Waqf system is deeply embedded in India’s legal and cultural fabric. Originating from Islamic law, a Waqf is essentially a perpetual charitable trust where a property is dedicated for religious, educational, or social purposes. The management of such properties is vital for the Muslim community, as Waqfs often sustain mosques, madrasas, orphanages, and community welfare programs.
Historically, the Waqf Act, 1995 vested powers of management and supervision in State Waqf Boards, thus respecting India’s federal arrangement under the Seventh Schedule. States were entrusted to regulate Waqfs within their territories, with minimal interference from the Union.
The Waqf Amendment Act, 2025, however, shifts this balance by empowering the Union Government to override State Boards. It introduces provisions enabling the Centre to dictate appointments, audits, inquiries, and even dissolution of Boards. The legislation is defended by the government as necessary to address corruption and mismanagement in Waqf properties. Yet, the question remains: At what constitutional cost?
This article argues that the Act undermines minority rights, secularism, and federalism—all recognized as part of the basic structure of the Constitution. Through constitutional analysis and judicial precedent, it demonstrates that the Amendment is unconstitutional and unsustainable.
To the Point
Curtailment of State powers: States lose significant authority over Waqf Boards.
Centralized oversight: Union assumes control over appointments, audits, and dissolution.
Minority rights undermined: Autonomy of Muslims over Waqf institutions is weakened.
Federalism violated: Encroachment on Entry 28, List II of the Seventh Schedule.
Colourable legislation: Reform is presented as transparency, but the real effect is centralization.
Legal Framework and Constitutional Provisions
1. Article 25
It ensures the freedom of conscience as well as the right to profess, practice, and spread one’s religion. State interference must be limited and justified by public order, morality, or health.
2. Article 26
Gives every religious denomination the right to manage its own affairs in matters of religion, including property and institutional administration.
3. Articles 29 & 30
Protect the cultural and educational rights of minorities, including the right to establish and administer institutions.
4. Article 246 & Seventh Schedule
Entry 28 of List II places “charities and charitable institutions, religious endowments, and religious institutions” squarely within the jurisdiction of States. Parliament cannot legislate on this matter except incidentally.
5. Article 13
Declares laws inconsistent with or derogating from fundamental rights void. The Amendment encroaches upon each of these guarantees, warranting strict scrutiny.
Doctrinal Tools Applied
Ultra Vires: Parliament legislated beyond its competence by encroaching on the State List.
Colourable Legislation: Ostensible aim of transparency masks the true objective—centralization.
Basic Structure Doctrine: Parliament cannot alter secularism, federalism, or minority rights.
Doctrine of Proportionality: Any restriction on rights must be reasonable, necessary, and proportionate; the Act fails this test.
The Proof: Constitutional Violations
- Violation of Minority Rights
Articles 26 and 30 guarantee minorities the right to manage religious and educational institutions. By giving Overriding powers to the Union, the Amendment denies the Muslim community control over its Waqfs. This Erodes institutional autonomy, effectively nullifying constitutional guarantees.
- Erosion of Federalism
The Seventh Schedule clearly places religious endowments under the exclusive legislative competence of States. The Union’s intervention represents a direct encroachment, undermining the principle of cooperative Federalism. In State of West Bengal v. Union of India (1962), the Court affirmed that States are not mere Agents of the Union but sovereign within their allotted sphere.
- Threat to Secularism
Secularism requires neutrality of the State in religious affairs. Excessive Union control over a minority Institution risks creating a perception of political interference in religious matters. This contradicts the secular Framework articulated in S.R. Bommai.
Case Law Analysis
- Kesavananda Bharati v. State of Kerala (1973)
Principle: Established the basic structure doctrine.
Relevance: Minority rights, secularism, and federalism are basic features; Parliament cannot abrogate them Through ordinary law.
- S.R. Bommai v. Union of India (1994)
Principle: Secularism is a basic feature.
Relevance: Government control over minority institutions violates secular neutrality.
- Azeez Basha v. Union of India (1968)
Principle: Parliament cannot take away minority rights to administer institutions.
Relevance: Waqf Boards qualify as institutions protected under Article 30.
- T.M.A. Pai Foundation v. State of Karnataka (2002)
Principle: Minority institutions enjoy significant autonomy.
Relevance: Excessive interference undermines the spirit of this judgment.
- Indira Gandhi v. Raj Narain (1975)
Principle: Limits on Parliament’s power are non-negotiable.
Relevance: If even constitutional amendments cannot override basic structure, an ordinary statute certainly Cannot.
Critical Analysis
The Waqf Amendment Act, 2025 must be understood as part of a broader trend of centralization in religious And cultural affairs. The government’s justification—curbing corruption—is not inherently illegitimate. However, constitutional limitations exist for a reason.
The proportionality test demonstrates the Act’s flaws:
- Legitimate Aim: Ensuring accountability is legitimate.
- Suitability: Centralization is not the only or best means; independent audits could achieve the same.
- Necessity: Less intrusive measures (ombudsman, state audits, judicial oversight) were available.
- Balancing: The burden on minority rights far outweighs the purported benefits.
Thus, the Act fails constitutional scrutiny.
Conclusion
The Waqf Amendment Act, 2025 is unconstitutional for three principal reasons:
1. Infringement of Minority Rights: It undermines Articles 25–30.
2. Violation of Federal Scheme: It usurps State powers under Entry 28, List II.
3. Erosion of Basic Structure: It weakens secularism and pluralism, foundational principles of the Constitution.
The Act should be struck down under Articles 13 and 32. Judicial intervention is essential to reaffirm India’s commitment to religious freedom, minority rights, and federalism.
FAQ
Q1. What is the constitutional position of Waqf in India?
The Waqf system is protected under Articles 25 and 26, which guarantee religious freedom and the right to manage religious affairs. Waqf properties are considered part of the cultural and religious autonomy of the Muslim community, making them constitutionally protected institutions.
Q2. How does the Waqf Amendment Act, 2025 alter the existing Waqf Act, 1995?
The 1995 Act gave State Waqf Boards substantial autonomy in managing Waqf properties. The 2025 Amendment shifts critical powers—such as appointment of Board members, approval of financial decisions, and dispute resolution—to the Union Government. This undermines State autonomy and minority self- governance.
Q3. Why is federalism at stake in this Act?
Under Seventh Schedule, List II, Entry 28, matters concerning “religious endowments” are within the exclusive domain of State legislatures. By legislating extensively in this field, Parliament has intruded into State powers, violating the federal balance, which is part of the basic structure.
Q4. Does the Act violate the doctrine of proportionality?
Yes. Any restriction on fundamental rights must be reasonable and proportionate. Centralizing all powers is an excessive and disproportionate measure when less restrictive options (such as improving accountability at the State level) were available.
Q5. Can minority institutions refuse State interference under Article 30?
Yes. Article 30 explicitly guarantees minorities the right to establish and administer educational and other institutions of their choice. Judicial precedents such as T.M.A. Pai Foundation v. State of Karnataka (2002) confirm that excessive government interference is unconstitutional.
Q6. Is the Act an example of “colourable legislation”?
Yes. The stated purpose of “ensuring transparency and accountability” is a pretext. In reality, the Act transfers control from minority communities to the Union Government. Courts have repeatedly struck down such colourable legislations, which cloak unconstitutional objectives under benign language.
Q7. How does the Act undermine secularism?
Secularism, as recognized in S.R. Bommai v. Union of India (1994), requires the State to maintain neutrality in religious matters. By disproportionately interfering with one community’s religious endowment, the Act abandons neutrality and risks political misuse of religious institutions.
Q8. Does the Act impact non-Muslim communities?
Indirectly, yes. If Parliament succeeds in centralizing Waqf, it sets a precedent for interference in temple trusts, church properties, and gurdwaras. This threatens the religious autonomy of all communities, not just Muslims.
Q9. What remedies are available to challenge the Act?
A writ petition under Article 32 (Supreme Court) or Article 226 (High Courts).
Grounds: violation of fundamental rights, encroachment on State List, breach of basic structure.
Relief: Declaration of the Act (or its offending provisions) as unconstitutional and unenforceable.
Q10. Can Parliament justify its action under “national interest” or “public order”?
Not convincingly. While Article 25(1) permits reasonable restrictions in the interest of public order, morality, and health, centralizing Waqf Boards does not fall within these exceptions. It is administrative overreach, not a legitimate public order measure.
Q11. Is judicial review likely to succeed against the Act?
Yes. Given precedents like Kesavananda Bharati (basic structure doctrine), Bommai (secularism), and T.M.A. Pai (minority rights), the Supreme Court has strong constitutional grounds to invalidate the Act.
Q12. Does the Act promote transparency and accountability as claimed?
Not necessarily. Transparency can be ensured through audit mechanisms, stricter anti-corruption provisions, and independent tribunals. Centralizing authority only creates new layers of bureaucracy and opens the door to political influence.
Q13. What impact does the Act have on property rights?
Article 300A of the Constitution protects property from arbitrary deprivation. By enabling central authorities to override community decisions on Waqf assets, the Act indirectly curtails minority property rights.
Q14. Could the Act be partially upheld and partially struck down?
Yes. The Court may apply the doctrine of severability, striking down unconstitutional provisions (like central appointment powers) while preserving valid parts (like anti-corruption clauses).
Q15. How does the Act affect India’s international image?
India is a signatory to international conventions protecting minority rights, such as the International Covenant on Civil and Political Rights (ICCPR). The Act may attract criticism for undermining religious freedom and pluralism, tarnishing India’s image as a secular democracy.
Q16. What is the long-term danger of the Act?
The Act represents a slippery slope toward majoritarian centralization of religious affairs. If unchecked, it
could normalize State interference in religious institutions, weakening the constitutional promise of secularism and pluralism.
Q17. How does the Act affect the autonomy of State Waqf Boards?
The Act centralizes authority by requiring Union approval for financial, administrative, and appointment decisions. This erodes the independent decision-making capacity of State Boards, reducing them to implementing agencies of the Centre.
Q18. Can the Act be challenged as discriminatory under Article 14?
Yes. Article 14 guarantees equality before the law. By singling out Waqf institutions for Union control, while leaving similar endowments of other communities untouched, the Act creates unreasonable classification, making it vulnerable under Article 14.
Q19. Does the Act conflict with the principle of cooperative federalism?
Yes. The Supreme Court in State of Rajasthan v. Union of India (1977) emphasized cooperative federalism as a guiding principle. Centralizing Waqf management undermines cooperation between Centre and States, tilting the balance toward unilateral control.
Q20. Can the Act be justified under Article 31B (Ninth Schedule)?
Unlikely. Even if placed in the Ninth Schedule, post-I.R. Coelho v. State of Tamil Nadu (2007), laws are still open to judicial review if they violate the basic structure, including secularism and federalism.
Q21. Does the Act undermine the spirit of Article 26?
Yes. Article 26 gives religious denominations the right to manage their own affairs in matters of religion. The Act transfers this management function to the Union, infringing on community autonomy.
Q22. How does the Act affect judicial workload?
By shifting disputes to centrally appointed authorities, the Act may reduce State-level tribunal autonomy but increase challenges in High Courts and the Supreme Court, thereby burdening the judiciary with constitutional disputes.
Q23. Could the Act be seen as violating the Directive Principles?
Possibly. Articles 38 and 51 promote justice and respect for international obligations. By undermining minority rights, the Act runs contrary to these principles, even if DPSPs are non-justiciable.
Q24. How might this Act influence politics at the State level?
States with large Muslim populations may view this as encroachment on their cultural and administrative autonomy, deepening Centre-State tensions and potentially fueling political polarization.
Q25. What are the economic implications of centralizing Waqf properties?
Waqf assets are vast, including prime real estate. Centralization may result in bureaucratic inefficiency, delays in development projects, and potential misuse of properties for political or commercial purposes, rather than community welfare.
Q26. Does the Act affect women’s rights within the Waqf system?
Indirectly. While the Act doesn’t address gender equity in Waqf administration, centralization could either improve or worsen representation depending on Union policies. Without safeguards, women’s participation in decision-making may remain minimal.
Q27. Could the Act be repealed or modified through political processes?
Yes. A future Parliament with different political priorities could amend or repeal the Act. However, unless struck down by the judiciary, its provisions remain enforceable until such legislative change occurs.
Q28. What is the role of civil society in responding to the Act?
Civil society groups, NGOs, and minority organizations can raise awareness, file public interest litigations (PILs), and mobilize opinion nationally and internationally to safeguard constitutional values.
Q29. How does the Act relate to past controversies over temple and church management?
The Supreme Court has repeatedly intervened to limit State interference in temple management (e.g., Sabarimala, Padmanabhaswamy Temple cases). If extended to Waqf, similar principles of religious autonomy should apply, making the Act vulnerable.
Way Forward: Reform Without Erosion
Reform of Waqf administration is necessary, but not at the cost of constitutional guarantees. Suggested alternatives include:
1. Independent Audit Authority: A statutory body jointly managed by States and the Centre.
2. Judicial Oversight: High Court-supervised Waqf Tribunals.
3. Digital Transparency: Mandatory digitization of Waqf property records.
4. Capacity Building: Training and resources for State Waqf Boards.
5. Community Involvement: Ensuring representation of the Muslim community in management.
Such measures would enhance accountability while respecting federalism and minority rights.
