The Waqf Act 1995 and the 2025 Amendment

The Waqf Act 1995 does not state the substantive law of waqf, which remains personal law. What it supplies is machinery: a means of ascertaining what property is waqf, registering it, administering it through State Waqf Boards, and resolving disputes through Waqf Tribunals. The Waqf (Amendment) Act 2025 made the most extensive changes to that machinery since 1995, and its constitutional validity is presently before the Supreme Court, with two important provisions stayed.

Legislative History

Structure of the Waqf Act 1995

Why the Tribunal and the bar of jurisdiction matter so much in practice: S.83 confers wide jurisdiction on the Tribunal over any dispute or question relating to a waqf or waqf property, and S.85 removes that jurisdiction from the ordinary civil courts. The combined effect is that questions of title to property alleged to be waqf are ordinarily determined by a specialised tribunal, and a person who says his property has been wrongly listed as waqf must go there. That is the structural feature the 2025 amendment addresses, by providing an appeal to the High Court and by altering how government property claimed as waqf is dealt with.

The Waqf (Amendment) Act 2025

The essential facts, which must be stated accurately

Principal changes

1. Who may create a waqf. Two new requirements:

• S.3A requires that the creation of a waqf be by a person who is the lawful owner of the property and competent to transfer or dedicate it.
• The amended definition of "waqf" in S.3(r) requires the waqif to be a person practising Islam for at least five years. This provision is presently stayed, on which see below.

2. Waqf by user removed prospectively. Before 2025 a waqf could be constituted by declaration, by user, or by endowment on the ending of the line of succession. The 2025 Act omits the provisions relating to waqf by user as a mode of creating a waqf going forward. The doctrine in Syed Md Salie Labbai v Mohd Hanifa (1976), under which prayer with azan and ikamat or long user established a dedication, therefore governs waqfs already created but not future dedications.

3. Waqf alal aulad and inheritance. A waqf alal aulad must not result in denial of inheritance rights to the donor's heirs, including women heirs. This addresses from the opposite direction the concern the Privy Council had in Abul Fata, that the family waqf could be used to defeat the Quranic shares.

4. Government property, S.3C. Provisions were introduced dealing with government property "identified or declared" as waqf, including determination by a designated officer and consequent correction of revenue records. Parts of S.3C are presently stayed.

5. Non Muslim members. The composition of the Central Waqf Council and the State Waqf Boards was altered to include non Muslim members. The Supreme Court declined to stay this at the interim stage, holding the functions to be secular and advisory, but capped the numbers.

6. Registration on a central portal. All waqf properties are to be registered on a centralised digital portal, with records, photographs and geotagged locations, the portal giving the amending statute its UMEED acronym.

7. Tribunals, appeals and survey. The amendment reformed the composition and working of Waqf Tribunals, changed the survey mechanism by transferring survey functions from the Survey Commissioner to the Collector, and provided for appeals to the High Court from Tribunal decisions.

The interim order of 15 September 2025

Why the form of the S.3(r) stay is worth noticing: The Court did not condemn the requirement of religious adherence as such. It identified the vice as the absence of a mechanism for determining it, which makes the requirement an invitation to arbitrary decision making. The stay is therefore conditional, expressed to operate until the States frame guidelines, so the provision may revive once the defect is cured. That is an unusual and instructive form of interim relief, and describing it accurately distinguishes a good answer from one that simply says the provision was stayed.

Why parts of S.3C were stayed on separation of powers grounds: The stayed elements gave a government officer's determination direct legal consequences on the status of property and on revenue records, and allowed property not to be treated as waqf pending that officer's report. Questions of title are for adjudication, not executive determination, and a provision that lets an officer's report displace waqf status pre empts the judicial function. Note the contrast with what survived: the Court did not object to the State investigating claims to government property, only to the executive deciding them.

Arguments For and Against the 2025 Amendment

Set these out in two columns, which is what an essay question wants.

The strongest single point on each side, if room permits only one: For the amendment, that the requirement of lawful ownership and documented dedication addresses a real and long standing problem of contested and fraudulent waqf listings. Against it, that the removal of waqf by user operates hardest on precisely those endowments whose waqf character is least doubtful in fact and least documented in law.

The Constitutional Frame

The two decisions that set the boundaries should be cited in any constitutional discussion of the amendment.

Property is not immune. Dr M Ismail Faruqui v Union of India (1994) 6 Supreme Court Cases 360 held that a mosque enjoys no greater immunity from acquisition than any other place of worship, that Art.25 contains no reference to property, and that Art.26 does not curtail the power of acquisition. So an argument that waqf property is constitutionally untouchable cannot succeed.

Internal religious governance is protected. Sardar Syedna Taher Saifuddin Saheb v State of Bombay (All India Reporter 1962 Supreme Court 853) held, by four to one with Sinha CJ dissenting, that the exercise of a religious power by the head of a denomination on religious grounds is part of the management of its affairs in matters of religion under Art.26(b), which is not subject to the preservation of civil rights. Note that this decision has been referred for reconsideration to a larger Bench and its status is not settled.

Where the amendment sits between them. The petitioners' Art.26(b) argument is that administering religious endowments is management of religious affairs, so composition of the Boards is a religious matter. The Union's answer, which the Court accepted at the interim stage, is that the Boards' functions are secular and advisory, and that regulating the administration of property is not regulating religion. That is the central constitutional question the final hearing will decide.

Illustrations

1. A dedication in 2026 by a non owner. A person in possession but not the owner purports to dedicate land as waqf. S.3A requires the waqif to be the lawful owner competent to transfer or dedicate, so the dedication fails.

2. A dedication in 2026 by a recent convert. A person who converted to Islam two years earlier dedicates property as waqf. The amended S.3(r) would require five years of practising Islam, but that requirement is presently stayed until the States frame guidelines, so it cannot presently be relied on to defeat the dedication. Note that it may revive.

3. An old mosque with no deed. A mosque built in 1950, where prayers have been offered with azan since, is claimed as waqf. Waqf by user established it before 2025, applying Salie Labbai, and the removal of the doctrine operates prospectively; the interim order additionally directs that waqfs, including waqf by user, not be denotified or interfered with pending adjudication.

4. Government property claimed as waqf. A designated officer reports that land listed as waqf is government property, and the revenue records are corrected accordingly. The provisions permitting that course, the proviso to S.3C(2) and S.3C(3) and (4), are stayed, so the officer's report cannot presently displace the waqf status or alter the records.

5. Board composition. A State Waqf Board is constituted with five non Muslim members. That exceeds the cap of three directed by the interim order, and the constitution is liable to be corrected.

6. A waqf alal aulad excluding daughters. A deed dedicates property for the benefit of the male line only. Under the 2025 amendment a waqf alal aulad must not result in denial of inheritance rights to the donor's heirs, including women heirs, so the excluded daughters may object.

Recall Check

1. State the Act number, the date of assent and the date of commencement of the 2025 amendment, and the new name of the 1995 Act.
2. Name six principal changes made by the 2025 amendment.
3. Set out what the interim order of 15 September 2025 stayed, what it directed, and what it declined to stay.

Key Cases

In Re: The Waqf (Amendment) Act, 2025 In Re Waqf Amendment Act 2025
Issue: Whether the operation of the Waqf (Amendment) Act 2025 should be stayed pending final adjudication of the challenge to its validity.
Rule: Interim order. The Act as a whole was not stayed, the presumption being in favour of constitutionality and a wholesale stay being reserved for the rarest of cases. S.3(r) was stayed as to the five year practising Islam requirement until the States frame guidelines; the proviso to S.3C(2) and S.3C(3) and (4) were stayed on separation of powers grounds; non Muslim membership was not stayed but capped at four and three.
Held: Partial interim stay with protective directions on title, possession and third party rights. The challenge remains pending.

Syed Mohd Salie Labbai v Mohd Hanifa (1976) Syed Md Salie Labbai v Mohd Hanifa 1976
Issue: Whether a mosque, Dargah and burial ground were public waqf without an express deed.
Rule: Four conditions for a public dedication; prayer with azan and ikamat suffices where there is no express dedication; dedication may be inferred from long user; non user does not divest a public graveyard.
Held: All three were public waqf. The doctrine of waqf by user which this case states has been removed prospectively by the 2025 amendment.

Abul Fata Mahomed Ishak v Russomoy Dhur Chowdhry (1894) Abul Fata Mahomed Ishak v Russomoy Dhur Chowdhry 1894
Issue: Whether a settlement primarily for the settlor's family, charity taking effect on extinction of the line, creates a valid waqf.
Rule: No; the charitable gift must be substantial and not illusory.
Held: No valid waqf. Superseded by the Mussalman Wakf Validating Act 1913, made retrospective by the 1930 Act.

Dr M Ismail Faruqui v Union of India (1994) Md Ismail Faruqui v Union of India 1994
Issue: Whether a mosque enjoys immunity from acquisition.
Rule: It enjoys no greater immunity than any other place of worship; Art.25 contains no reference to property and Art.26 does not curtail acquisition. S.4(3) of the Ayodhya Act, abating pending suits, was unconstitutional and severable.
Held: The Act upheld save for S.4(3).

Distinctions

Flashcards

Exam Scenario

Problem: "The Waqf (Amendment) Act 2025 improves the administration of waqf property at the cost of the very endowments it purports to protect." Critically examine, with reference to the scheme of the Waqf Act 1995, the changes made in 2025, and the current state of the litigation.

Step 1: Open with what the 1995 Act actually does

The Act does not state the substantive law of waqf, which remains personal law. It supplies machinery.

Survey under Ss.4 and 5; the Central Waqf Council under S.9; State Waqf Boards under S.13, with general superintendence under S.32; compulsory registration under S.36; the prohibition on alienation under S.51; removal of encroachments and of mutawallis; and dispute resolution through Waqf Tribunals under S.83.

S.85 bars the jurisdiction of civil, revenue and other courts. The structural consequence is that questions of title to property alleged to be waqf are determined by a specialised tribunal, and that is the feature the 2025 amendment most directly addresses.

Step 2: Set out the 2025 changes in an organised way

Act 14 of 2025; assent 5 April 2025; brought into force 8 April 2025.

1. The 1995 Act was renamed the Unified Waqf Management, Empowerment, Efficiency and Development Act 1995, the UMEED Act.
2. Two new restrictions on who may create a waqf: S.3A lawful ownership and competence to transfer or dedicate, and S.3(r) five years of practising Islam.
3. Waqf by user removed prospectively.
4. S.3C machinery for government property identified or declared as waqf.
5. Inclusion of non Muslim members on the Council and the Boards.
6. A waqf alal aulad must not deny inheritance rights to heirs, including women heirs.
7. Central digital registration with geotagging.
8. Reform of Tribunals, with an appeal to the High Court.

Step 3: Argue both halves of the proposition

The mitigation must be given. The removal of waqf by user is prospective; the interim order of 17 April 2025 directed that no waqf property, whether registered, unregistered or waqf by user, be denotified or interfered with; and the Union stated on 21 April 2025 that the clause was being held in abeyance.

Step 4: Locate the constitutional argument between the two authorities

Ismail Faruqui (1994) forecloses any argument that waqf property is untouchable: a mosque enjoys no greater immunity from acquisition than any other place of worship, Art.25 contains no reference to property, and Art.26 does not curtail acquisition.

Sardar Syedna (1962) establishes that internal religious governance is protected under Art.26(b), which is not subject to the preservation of civil rights, though its correctness has been referred to a larger Bench and is unsettled.

The petitioners say that administering religious endowments is management of religious affairs, so the composition of the Boards is a religious matter. The Union's answer, accepted at the interim stage, is that the Boards' functions are secular and advisory.

Add the Art.14 and Art.15 point, that comparable Hindu, Sikh and Christian endowment bodies are not required to include members of other faiths.

Step 5: State the litigation position accurately

In Re: The Waqf (Amendment) Act, 2025 (2025 INSC 1116), interim order of 15 September 2025, CJI Gavai and Masih J:

1. The Act as a whole was not stayed, on the presumption of constitutionality, a wholesale stay being reserved for the rarest of cases.
2. S.3(r) was stayed as to the five year requirement, in the unusual conditional form that the stay operates until the States frame guidelines; the vice was the absence of a determination mechanism, not the requirement itself, so the provision may revive.
3. The proviso to S.3C(2) and S.3C(3) and (4) were stayed on separation of powers grounds, because they let a government officer's determination displace waqf status and alter revenue records, whereas questions of title are for adjudication.
4. Non Muslim membership was not stayed but capped at four on the Council and three on the Boards.
5. Titles are not to be affected and waqfs not dispossessed pending final adjudication, and a waqf may create no third party rights meanwhile.

Conclusion. The proposition is half right, and the halves are not symmetrical. The administrative gains are real but incremental, addressing problems the 2013 amendment had already identified. The cost is concentrated and structural: removing waqf by user changes what can be a waqf, not merely how waqfs are administered, and it falls on the oldest and least documented endowments.

The interim order recognises that asymmetry, leaving the administrative apparatus standing while staying the provisions that would have altered status and title by executive determination. On that reading the amendment is defensible as administration and vulnerable as definition, and the final hearing will turn on whether regulating waqf property is regulating religion.

See Also

• Waqf: Definition, Essentials and Kinds : the substantive law of waqf which this Act administers.
• Mutawalli: Powers, Duties and Removal : the office the Act regulates, and removal under S.64.
• Succession under Muslim Law: General Principles : the inheritance rights the 2025 amendment protects in a waqf alal aulad.
• Operation and Application of Muslim Law : the Waqf Act as a territorial statute displacing personal law on procedure.