Judiciary and Religion - Can there be fairness, zero-bias, fairness?
What is the Waqf Act, 1995?
The Waqf Act, 1995 is a central law enacted in India to ensure the effective administration, management, and protection of Waqf properties—endowments of property created under Muslim law for religious or charitable purposes.
The Act provides for the establishment of Waqf Boards at both the state and central levels to supervise these properties, ensuring their proper use in line with their intended objectives, and to maintain transparency and legality in their management.
In 2025, the Act was amended through the Waqf (Amendment) Act, 2025, also referred to as the UMEED Act (Unified Waqf Management, Empowerment, Efficiency, and Development).
Key Provisions of the Waqf (Amendment) Act, 2025
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Trusts Excluded: Muslim trusts governed by other charity laws are treated as separate from Waqfs.
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Inheritance Rights Protected: Women and children must receive their rightful inheritance before property is designated as Waqf.
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Protection of Tribal Lands: Establishing Waqfs on tribal lands under the Fifth and Sixth Schedules of the Constitution is prohibited.
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Appeal Mechanism: High Courts are empowered to hear appeals against decisions of Waqf Tribunals.
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Financial Reforms: Mandatory contributions payable to Waqf Boards reduced from 7% to 5%.
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Income Audit: Waqf institutions with annual income above ₹1 lakh must undergo government-mandated audits.
Waqf Boards
A Waqf Board is a statutory body with legal authority to acquire, manage, and transfer property, and to sue or be sued. Its responsibilities include:
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Managing and protecting Waqf properties.
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Recovering encroached or lost assets.
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Approving transfers (sale, lease, gift, mortgage, or exchange), subject to approval by at least two-thirds of board members.
At the national level, the Central Waqf Council (CWC), under the Ministry of Minority Affairs, provides oversight and advisory support to the State Waqf Boards.
Key Contentious Provisions of the 2025 Amendment and the Supreme Court’s Position
Provisions Upheld by the Supreme Court
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Applicability of the Limitation Act:The 1995 Act exempted Waqfs from the Limitation Act, 1963, enabling them to act against encroachments indefinitely.The 2025 Amendment removed this exemption, imposing time limits for legal claims.The Court upheld this, ruling it corrects earlier discrimination.
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Abolition of “Waqf by Use”:Earlier, land continuously used for Muslim religious or charitable purposes could be declared Waqf even without registration.This concept was abolished in 2025, citing misuse for encroaching government land.The Court upheld this, finding no grounds to interfere.
Provisions Stayed by the Supreme Court
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Five-Year Rule for Practising Muslims:The Amendment required that only a person who had practised Islam for at least five years could create a Waqf.The Court stayed this, noting the absence of a verification mechanism.
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Powers of District Collectors (Section 3C):District Collectors were empowered to declare Waqf properties as government property during inquiries.The Court stayed this, holding it arbitrary and a breach of separation of powers.It clarified that until a Waqf Tribunal delivers a final verdict, such properties must retain their Waqf status, cannot be transferred, and no third-party rights may arise.
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Non-Muslim Representation in Waqf Boards:The Amendment allowed large numbers, even majorities, of non-Muslims in Waqf Boards and the Central Waqf Council.The Court capped their numbers:
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Central Waqf Council (22 members) → maximum 4 non-Muslims.
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State Waqf Boards (11 members) → maximum 3 non-Muslims.
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Key Judicial Precedents on Religious Freedom
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Bijoe Emmanuel v. State of Kerala (1987): Students cannot be compelled to sing the National Anthem if it violates their religious beliefs, provided public order is not disrupted.
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Shayara Bano v. Union of India (2017): Instant triple talaq (talaq-e-biddat) was struck down as unconstitutional, violating equality (Article 14) and gender justice, and not being an essential religious practice under Article 25.
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Dr. Mahesh Vijay Bedekar v. Maharashtra (2016): The use of loudspeakers was held not to be an essential religious practice and thus not a protected fundamental right under Articles 19(1)(a) or 25.
Conclusion
The Waqf (Amendment) Act, 2025 aims to modernize and reform Waqf administration, but it also raises valid concerns regarding autonomy and rights. The Supreme Court’s interim interventions reflect a careful balancing act—supporting reforms that enhance accountability, while striking down or staying provisions that infringe on constitutional safeguards.
Going forward, reforms must emphasize transparency, fairness, and accountability, while upholding the spirit of religious freedom and nurturing trust among communities.
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