What's Brewing

On 8th August 2024, the Ministry of Minority Affairs introduced in the Lok Sabha a bill (Amendment Bill) to amend the existing Waqf Act of 1995. On the same day, this Amendment Bill was referred to a Joint Parliamentary Committee (JPC) comprising Treasury and Opposition members of Lok Sabha and Rajya Sabha. 

Earlier, on 6th August 2024, the Ministry introduced in Lok Sabha another bill (Repeal Bill) to repeal existing Mussalman Waqf Act of 1923, in view of its obsolescence.   

After extensive debates in both Houses of Parliament, the Waqf (Amendment) Bill was passed in the Lok Sabha on 2nd April’25 and Rajya Sabha on 3rd April’25. The President of India approved the Act, and it was duly notified in the Gazette on 5th April 2025. Hence the “Waqf (Amendment) Act 2025” [New Act].      

Salient features of the Waqf Act 1995 (prior to Waqf Act 2025)

• A ‘waqf’ property, which is also called ‘Auqaf’, can be created in three accepted ways:

1. By declaration of the ‘waqif’ i.e. the donor himself.
2. ‘Waqf By User’ i.e. by long term use of the property for Islamic religious purposes.
3. ‘Waqf Alal Aulad’ i.e. by automatic endowment in absence of male heirs to the property.    

• Waqf Act 1995 shall apply to all ‘waqf’ properties, except: the Dargah Khwaja Saheb, Ajmer, which is governed by the Dargah Khwaja Saheb Act of 1995.  
• Survey Commissioner and additional Survey Commissioners are appointed by state govts for conducting surveys of Waqf properties in their regions. Lists of Waqf properties shall be maintained by the states based on the findings of these surveys.
• Survey Commissioners shall have the powers of a civil court. Boards shall forward the surveyed details of all Waqf properties to the state govts for duly notifying in the State Gazette.
• The costs of conducting surveys of Waqf properties shall be borne by the state govts.
• Separate Waqf properties shall be maintained for ‘Shia’ and ‘Sunni’ sects of Muslims.
• All disputes on Waqf properties shall be settled by the Tribunal duly constituted by the govts in their states and shall comprise: 

1. 1 civil/sessions/district Class I judge, as Chairman.  
2. 1 State Civil Services cadre equivalent to Additional District Magistrate, as Member.
3. 1 person with expertise on Muslim Law, as Member. 

• Decisions of such Tribunals are final and cannot be contested in courts. High Courts can however, either suo moto or based on petitions from Waqf Boards or aggrieved persons, adjudicate on the correctness, legality and propriety of the Tribunals’ decisions.  
• Disputes relating to Waqf properties are exempt from the provisions of Limitation Act of 1963 i.e. all claims on disputed waqf properties shall necessarily have to be made within 1 year. This exemption, incidentally, is not applicable to properties belonging to other religions in India.
• Every ‘mutawalli’ (Trustee/Manger) of an ‘auqaf’ (waqf property) that generates an annual income of not less than rupees five thousand shall contribute seven percent (7%) of the net annual income to the Board.    
• Council, controlling all Boards, shall be constituted by Central govt, with its minister for minority affairs as ex-officio chairperson. All other members of the Council shall be Muslims and shall comprise, among others, 2 Lok Sabha MPs, 1 Rajya Sabha MP, heads of All India Islamic bodies, judges and Chairpersons of state Boards. The Council shall include at least 2 women members.
• Central Waqf Fund, controlled by the Council, shall comprise contributions from state Boards, with each Board contributing 1% of their net annual income from properties in their state. Central govt shall audit the Central Waqf Fund annually, cost of audit being borne by the Council. Respective state govts shall audit the accounts of their Boards, when annual incomes exceed fifty thousand rupees.
• The concept of ‘Waqf By User’ is among the provisions of the Waqf Act 1995 that has generated not only public debate but also several litigations in the Supreme Court. Under this concept, any property that has been in use for Islamic religious purposes for a considerable period of time shall be deemed irrevocably as waqf property even without any supporting documentation.       

Salient features of the Waqf Act 2025  

1. Under the New Act, a ‘Waqf’ property can be created only by a person who has been practising Islam for at least 5 years and not any person in general.
2. Surveys of Waqf properties shall henceforth be conducted not by Survey Commissioners but by the District Collector and in accordance with the revenue laws of the state.
3. Central Waqf Council shall now comprise:
   Non Muslims – Union minority affairs minister as ex-officio Chairperson, 2 Lok Sabha MPs, 1 Rajya Sabha MP, 2 former SC/HC judges, 1 eminent advocate, 4 persons of eminence from various professions and 1 Additional/Joint Secretary of the union ministry.
   Muslims – 3 representatives of All India Muslim organisations, 3 Chairpersons of State Boards (by rotation), 1 Mutawalli or his representative of an ‘auqaf’ with gross income of not less than Rs.5 lakhs and 3 scholars in Muslim Law. Out of these Muslim members, at least 2 shall be women. Members should also include those from other sects of Islam i.e. Shias, Bohras, Aghakhanis, etc.
4. State Waqf Boards, comprising total 11 members, shall include:
   Non-Muslims: Besides the Chairperson, 1 MP from the state, 1 MLA, 2 persons of professional eminence, 1 member of State’s Bar Council and 1 state govt representative of Joint Secretary rank.
   Muslims: 1 Mutawalli of an ‘auqaf’ having minimum annual income of Rs.1 lakh, 1 eminent scholar of Islam and 2 elected members of Municipalities or Panchayats. These Muslim members shall include: 2 women and at least 1 representative from other sects of Islam i.e. Shias, Bohras, Aghakhanis, etc.
5. Separate Waqf Boards may be created by state govts  for ‘Aghakhani’ and ‘Bohra’ sects of Muslims.
6. CEO of Boards shall no longer need to be a Muslim. State govt shall choose the CEO who shall not be below the rank of Joint Secretary to State govt.
7. Fresh applications for creating Waqf property shall be made only through a dedicated web portal. Henceforth, no ‘auqaf’ can be created without a proper deed. 
8. If District Collector’s report declares the property as disputed or a government property, it can be registered with the Board only after clearance from a competent court of law.
9. The decisions of Tribunals shall not be final and can be challenged in competent courts within 90 days. .
10. Exemption limit for annual audit of accounts is to be raised to rupees one lakh for each state Board.
11.  Boards can no longer decide if a property is ‘auqaf’, solely based on their own inquiry and assessment.     
12. Central govt shall be empowered to frame rules for conducting the affairs of the Waqf Boards.

The objective of this new Waqf (Amendment) Act 2025 is to infuse transparency, accountability, technology-aided, efficient administration and to generate income from the ‘auqafs’ commensurate with their market values.

However, several aspects of the Act have been challenged in the Supreme Court with minority stakeholders demanding revocation of this Act, on grounds of violating various proviosns of the Constitution of India such as: 

1. Article 14  –  Equality before Law and Absence of Discrimination of the law based on caste, race, religion, place of birth or sex.
2. Article 15  –  Discrimination on grounds of caste, race, religion, place of birth and sex.  
3. Article 25  –  Freedom to profess, practise and propagate Religion, this freedom being subject to  public order, morality and health.
4. Article 26  –  Freedom to manage Religious Affairs including acquiring, owning and managing movable or immovable property for religious or charitable purposes,  this freedom being subject to public order, morality and health.
5. Article 29  –  Protection of Minorities’ interests including their language, script and culture and right to  admission in State’s educational institutions and access to State’s financial aid.  

More than 100 petitions have been filed in the Supreme Court challenging the validity of the Waqf Amendment Act. 

The Supreme Court did not grant a stay on the implementation of the Waqf amendment Act. It has directed the centre to put the law on hold until all hearings have been complete. The Court flagged concerns of certain provisions such as alteration in character of Waqf assets including those declared as ‘Waqf by user’, inclusion of non-Muslims on Waqf Boards and related issues. The Central government has assured that it will not implement the Act and shall submit its reply by the first week of May 2025. Clearly, a lot is brewing in this space. 

For full text of the new Waqf (Amendment) Act 2025: https://prsindia.org/files/bills_acts/acts_parliament/2025/The_Waqf_(Amendment)_Bill,_2024.pdf