A Constitutional Crossfire Between Faith and Federalism: The Waqf (Amendment) Act, 2025 and the Limits of State Regulation of Religious Endowments Under Articles 14, 25, 26, and 246
By Guru Legal
Keywords: Waqf (Amendment) Act, 2025; Waqf Act, 1995; Article 14; Article 25; Article 26; Article 246; Article 246(3); Entry 28 State List; federalism; religious autonomy; Shirur Mutt case; S.R. Bommai v. Union of India; Section 14 Waqf Boards; waqf by user; practicing Muslim requirement; minority rights; Concurrent List; Basic Structure Doctrine
Abstract
The Waqf (Amendment) Act, 2025 (hereinafter, the Waqf Amendment Act or the Act), enacted by Parliament in April 2025, has occasioned a constitutional debate of considerable scope and significance in India, engaging fundamental questions about the limits of State regulation of religious endowments under Articles 25 and 26 of the Constitution of India, 1950 (hereinafter, the Constitution), the distribution of legislative powers between the Union and the States under Article 246 and the Seventh Schedule, and the compatibility of the Act’s provisions with the constitutional guarantees of equality under Article 14 and the federal structure of the Constitution, which has been recognised as a basic feature in S.R. Bommai v. Union of India, (1994) 3 SCC 1. The Act’s most constitutionally controversial provisions include the requirement that a person creating a waqf must have been a practising Muslim for a minimum of five years under the amended Section 3(r), the mandatory inclusion of non-Muslim members on State Waqf Boards under the amended Section 14, and the abolition of the long-standing doctrine of waqf by user, which had recognised as waqf properties that had been devoted to religious or charitable purposes over extended periods of time without formal documentation. These provisions have been challenged before the Supreme Court of India in consolidated writ petitions under the title In re: Waqf (Amendment) Act, 2025, and the Court’s final judgment on the constitutional validity of the Act is awaited. This article undertakes a structured constitutional analysis of the principal controversial provisions of the Act, examines the constitutional standards applicable to State regulation of religious denominations under the Shirur Mutt framework, and advances recommendations for legislative reform.
Introduction
The institution of waqf, a form of Islamic religious endowment under which a Muslim dedicates property for a religious or charitable purpose, has occupied a position of considerable legal and constitutional significance in India since the colonial period, and its governance has been regulated by a succession of legislative enactments, from the Mussalman Wakf Act, 1923, through the Wakf Act, 1954, to the Waqf Act, 1995 (hereinafter, the principal Act). The Waqf Amendment Act, 2025, passed by Parliament on the fourth day of April 2025, represents the most comprehensive and constitutionally significant restructuring of the waqf regulatory framework since the enactment of the principal Act. While the Union government has presented the Amendment as a necessary reform to improve accountability, efficiency, and transparency in the administration of waqf properties across India, the Act’s provisions have been subjected to sustained criticism by Muslim organisations, constitutional scholars, and civil society groups on the grounds that they constitute an unconstitutional interference with the religious autonomy of the Muslim community and with the legislative and administrative domain of the State governments in relation to religious and charitable endowments.
The constitutional challenge to the Waqf Amendment Act, 2025 is framed across three distinct but interrelated dimensions. The first dimension concerns the constitutional guarantee of religious freedom under Articles 25 and 26 of the Constitution, which protect the right of every person to freely profess, practise, and propagate religion, and the right of every religious denomination to manage its own affairs in matters of religion and to administer its property in accordance with law. The second dimension concerns the guarantee of equality under Article 14 of the Constitution, which prohibits arbitrary and discriminatory legislative action, and the question of whether certain provisions of the Act, particularly the five-year practising Muslim requirement under Section 3(r), constitute impermissible discrimination against the Muslim community by imposing conditions upon the creation of waqf that are not imposed upon members of other religious communities in the creation of charitable endowments. The third dimension concerns the distribution of legislative powers under Article 246 and the Seventh Schedule, and the question of whether the Act’s extension of Union supervisory control over State Waqf Boards constitutes an impermissible encroachment upon the exclusive legislative domain of the States in relation to religious and charitable endowments under Entry 28 of the State List.
The constitutional stakes of the Waqf Amendment Act, 2025 are accordingly high. The Supreme Court’s final determination of the consolidated writ petitions challenging the Act will have far-reaching consequences, not only for the governance of the approximately 8.72 to 8.8 lakh waqf properties in India but also for the broader constitutional framework governing the relationship between the State, religious minorities, and the federal structure. This article examines the constitutional dimensions of the three principal areas of controversy, analyses the relevant Supreme Court jurisprudence on the regulation of religious endowments, and advances a set of reform recommendations to address the constitutional concerns identified.
Constitutional Framework: Articles 25 and 26, the Shirur Mutt Doctrine, and the Limits of State Regulation of Religious Denominations
The constitutional framework governing the relationship between the State and religious denominations in India is established primarily by Articles 25 and 26 of the Constitution of India, 1950. Article 25 guarantees to all persons the freedom of conscience and the right freely to profess, practise, and propagate religion, subject to public order, morality, health, and the other provisions of Part III of the Constitution, and subject further to the power of the State to make laws regulating or restricting any economic, financial, political, or other secular activity associated with religious practice. Article 26 guarantees to every religious denomination or any section thereof the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law.
The constitutional standard for determining the permissible scope of State regulation of religious denominations and their property was established by the Supreme Court of India in the landmark judgment of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 (hereinafter, the Shirur Mutt case). The Court held in Shirur Mutt that the State is constitutionally empowered to regulate the secular or non-religious aspects of religious endowments, including the financial administration, accounts, and management of trust property, but that the State may not interfere with the essential religious practices of a denomination or with the denomination’s right to manage its own affairs in matters that are essentially and integrally religious in character. The distinction between the religious and the secular aspects of a religious denomination’s activities has been the principal analytical tool employed by the Supreme Court in subsequent cases involving State regulation of religious endowments, including Hindu temples, Sikh gurudwaras, and waqf properties.
The application of the Shirur Mutt framework to the provisions of the Waqf Amendment Act, 2025 raises questions of considerable constitutional complexity. The mandatory inclusion of non-Muslim members on State Waqf Boards under the amended Section 14, the five-year practising Muslim requirement for the creation of a valid waqf under Section 3(r), and the abolition of the doctrine of waqf by user each engage different aspects of the Shirur Mutt framework. It is submitted that the inclusion of non-Muslim members on bodies responsible for the management of waqf property, which is inherently and indivisibly connected to the Islamic religious tradition, constitutes an interference with the Muslim denomination’s right to manage its own affairs in matters of religion under Article 26(b), going beyond the permissible scope of regulation of the secular aspects of waqf administration. A closer and more nuanced analysis of each of these provisions in the light of the Shirur Mutt doctrine and subsequent Supreme Court authority is undertaken in the following section.
The Controversial Provisions: Section 3(r), Section 14, and the Abolition of Waqf by User
The provision in Section 3(r) of the Waqf Amendment Act, 2025 requiring that a person creating a waqf must have been a practising Muslim for at least five years prior to the creation of the waqf is the most constitutionally problematic provision of the Act. The requirement raises a direct challenge under Article 14 of the Constitution, which prohibits arbitrary and discriminatory State action: no analogous requirement of a minimum period of religious practice is imposed upon members of any other religious community in the creation of charitable endowments, whether under the Hindu Religious and Charitable Endowments Acts applicable to Hindu temples, the Sikh Gurudwaras Act, 1925, or the general law of trusts. The Supreme Court of India, in its interim order of September 2025, stayed this provision, acknowledging that it raised a prima facie case of unconstitutional discrimination and that the requirement placed the State in the constitutionally indefensible position of determining the sincerity or authenticity of a person’s religious practice, an act that is inconsistent with the freedom of conscience guaranteed by Article 25 of the Constitution.
The mandatory inclusion of non-Muslim members on State Waqf Boards under the amended Section 14 of the Waqf Act, 1995 constitutes a more nuanced constitutional question. The Union government has justified this provision as a transparency measure consistent with the general principle of public accountability in the administration of public trusts and endowments. The petitioners before the Supreme Court, however, contend that the management of waqf property is an essentially religious function, inextricably linked to the Islamic doctrine of religious endowment, and that the imposition of non-Muslim members upon the governing bodies of State Waqf Boards therefore constitutes an interference with the Muslim denomination’s right to manage its own affairs in matters of religion under Article 26(b) of the Constitution. The resolution of this constitutional question will require the Supreme Court to determine whether the management of waqf property falls within the scope of religious management protected by Article 26(b) or within the scope of secular administration that the State may regulate, a determination that will require careful application of the Shirur Mutt framework to the distinctive features of the waqf institution.
The abolition of the doctrine of waqf by user under the Waqf Amendment Act, 2025 raises constitutional concerns of a different character. The doctrine of waqf by user, under which properties had been recognised as waqf on the basis of their long-standing use for religious or charitable purposes without formal documentation, had been integral to the legal status of a significant number of historically significant waqf properties, including mosques, dargahs, and graveyards, many of which were established centuries ago and in respect of which formal deed documentation may never have existed. The abolition of this doctrine effectively threatens the waqf status of approximately 4.02 lakh properties that had previously been recognised as waqf on this basis, a consequence that the petitioners characterise as an unconstitutional expropriation of Muslim religious properties in violation of Articles 25, 26, and 300A of the Constitution, which guarantees that no person shall be deprived of property save by authority of law.
Federalism and Article 246: Union Overreach and the State List’s Protection of Religious Endowments
The federal dimension of the constitutional challenge to the Waqf Amendment Act, 2025 concerns the distribution of legislative powers between the Union and the States under Article 246 of the Constitution and the Seventh Schedule. Entry 28 of the State List (List II) of the Seventh Schedule grants the States exclusive legislative authority over charities and charitable institutions, charitable and religious endowments, and religious institutions. The Waqf Act, 1995 was enacted by Parliament under the Concurrent List (List III), specifically under Entry 10 relating to trusts and trustees, rather than under Entry 28 of the State List. The Waqf Amendment Act, 2025, however, grants the Union government unprecedented powers of supervisory control over State Waqf Boards, including the power to issue binding directives to State Waqf Boards, a power that the petitioners contend constitutes an impermissible encroachment upon the States’ exclusive legislative domain under Entry 28 of the State List.
The Supreme Court of India, in S.R. Bommai v. Union of India, (1994) 3 SCC 1, affirmed that federalism is a basic feature of the Constitution that cannot be abrogated even by constitutional amendment, and that the legislative and executive powers of the States in matters falling within the State List must be respected and protected. The petitioners in the consolidated challenge to the Waqf Amendment Act, 2025 contend that the Act’s extension of Union supervisory control over State Waqf Boards, which are quintessentially State bodies responsible for the management of religious and charitable endowments within the States’ territories, constitutes legislative imperialism that subverts the States’ autonomy and disturbs the federal balance enshrined in the Constitution. The resolution of this constitutional question will require the Supreme Court to examine whether the specific provisions of the Waqf Amendment Act, 2025 granting Union supervisory powers over State Waqf Boards constitute valid legislation under the Concurrent List or an impermissible encroachment upon the exclusive legislative domain of the States under Entry 28 of the State List.
Consequences and Implications for Minority Rights, Religious Freedom, and Indian Federalism
The implications of the Waqf Amendment Act, 2025 for minority rights, religious freedom, and Indian federalism are profound and far-reaching. If the Act is upheld by the Supreme Court in its current form, it would establish the precedent that the State may fundamentally restructure the governance of minority religious institutions, impose conditions upon the creation of religious endowments, and extend Union supervisory control over State bodies responsible for religious and charitable endowments, all without violating the constitutional guarantees of Articles 14, 25, 26, and 246. Such a precedent would significantly narrow the constitutional protection available to minority religious communities in India and would be difficult to reconcile with the international human rights obligations of India under the International Covenant on Civil and Political Rights, 1966, which prohibits discrimination on grounds of religion and guarantees the right of minorities to practise their religion.
At the level of federal governance, the upholding of the Act in its current form would substantially diminish the legislative and administrative autonomy of State governments in relation to religious and charitable endowments, a domain that the Constituent Assembly specifically included in the State List with a view to ensuring that matters of local religious and charitable significance are regulated at the level of government closest to the communities concerned. The Law Commission of India has, in several of its reports on centre-state relations, emphasised the importance of preserving the States’ legislative autonomy in domains that are specifically assigned to the State List, and the judicial imprimatur of the Waqf Amendment Act’s centralisation of control over State Waqf Boards would represent a significant departure from this constitutional commitment.
The Case for Reform: Legislative and Judicial Recommendations
The first area of reform concerns the withdrawal or amendment of Section 3(r) of the Waqf Amendment Act, 2025, which requires that a person creating a waqf must have been a practising Muslim for a minimum of five years. This provision is constitutionally untenable in its current form, as the Supreme Court’s interim stay of September 2025 has itself acknowledged, and it ought either to be withdrawn entirely or amended to remove the five-year practising Muslim requirement, in order to bring the Act into conformity with the constitutional guarantees of freedom of conscience under Article 25 and equality under Article 14 of the Constitution.
The second area of reform pertains to the amendment of Section 14 of the Waqf Amendment Act, 2025 to remove the requirement of non-Muslim membership of State Waqf Boards, or alternatively to reframe this provision as a permissive rather than mandatory measure, leaving it to the discretion of each State Waqf Board to determine the composition of its membership consistent with the denominational character of the waqf institution. Such an amendment would bring Section 14 into conformity with the Shirur Mutt framework and would remove the constitutional objection based on Article 26(b).
The third area of reform concerns the restoration of the doctrine of waqf by user, or alternatively the introduction of a transitional framework for the regularisation of properties that have historically been recognised as waqf on the basis of long-standing religious use, without formal documentation. It is submitted that Parliament ought to amend the Act to provide for a regularisation process under which waqf properties that were recognised as waqf by user prior to the commencement of the Amendment Act may be registered on the UMEED portal on the basis of evidence of long-standing religious use, without requiring the production of formal deed documentation that may no longer be available.
The fourth area of reform addresses the federal dimension of the constitutional challenge to the Waqf Amendment Act, 2025. It is submitted that the provisions of the Act granting Union supervisory powers over State Waqf Boards ought to be amended to convert these powers from mandatory and binding directives to advisory and recommendatory guidance, in a manner consistent with the constitutional scheme of cooperative federalism and with the States’ exclusive legislative authority over religious and charitable endowments under Entry 28 of the State List. Such an amendment would preserve the Union’s legitimate interest in promoting best practices in waqf governance while respecting the constitutional autonomy of the State governments in this domain.
The fifth area of reform concerns the expeditious resolution of the consolidated constitutional challenge to the Waqf Amendment Act, 2025 before the Supreme Court of India. Given the magnitude of the constitutional questions at stake and the practical impact of the Act’s provisions upon the governance of 8.72 to 8.8 lakh waqf properties and the communities that depend upon them, it is submitted that the Supreme Court ought to constitute a five-judge constitutional bench to hear the consolidated petitions at the earliest opportunity, and ought to provide comprehensive interim relief pending the constitutional determination to prevent the irreversible loss of the waqf character of properties affected by the abolition of the doctrine of waqf by user.
Conclusion
The Waqf (Amendment) Act, 2025, while presented by the Union government as a necessary administrative reform, raises constitutional objections of considerable force and depth that demand careful judicial examination. The five-year practising Muslim requirement, the mandatory inclusion of non-Muslim members on State Waqf Boards, and the abolition of the doctrine of waqf by user collectively engage the constitutional guarantees of religious freedom under Articles 25 and 26, the right to equality under Article 14, and the federal structure of the Constitution as protected by Article 246 and Entry 28 of the State List. The Supreme Court of India’s judgment in the consolidated writ petitions challenging the Act will be a watershed moment in Indian constitutional history, with the potential to redefine the permissible scope of State regulation of minority religious institutions, the constitutional dimensions of India’s federal compact, and the protection of minority rights in a diverse and pluralistic democracy. It is submitted that the legislative reforms recommended in this article, including the withdrawal of the five-year practising Muslim requirement, the reframing of the non-Muslim board membership provision, the restoration of the waqf by user doctrine, and the conversion of Union supervisory powers over State Waqf Boards to advisory guidance, are essential to bring the Act into conformity with the constitutional framework of the Republic of India.
Frequently Asked Questions (FAQ)
Q1. What is the Waqf (Amendment) Act, 2025, and what are its most constitutionally controversial provisions?
The Waqf (Amendment) Act, 2025 (Act No. 12 of 2025), enacted by Parliament in April 2025, amends the Waqf Act, 1995 in several significant respects. The most constitutionally controversial provisions of the Act include: the requirement under the amended Section 3(r) that a person creating a waqf must have been a practising Muslim for at least five years, which has been stayed by the Supreme Court of India in its interim order of September 2025 as raising a prima facie case of unconstitutional discrimination; the amended Section 14, which mandates the inclusion of non-Muslim members on State Waqf Boards; and the abolition of the doctrine of waqf by user, which had recognised as waqf properties that had been devoted to religious or charitable purposes over extended periods without formal documentation, thereby threatening the waqf status of approximately 4.02 lakh properties. These provisions are constitutionally challenged in consolidated writ petitions before the Supreme Court of India under the title In re: Waqf (Amendment) Act, 2025.
Q2. What legal remedy is available to Muslim organisations and individuals aggrieved by the provisions of the Waqf (Amendment) Act, 2025?
Muslim organisations and individuals aggrieved by the constitutional infirmities of the Waqf (Amendment) Act, 2025 may file writ petitions before the Supreme Court of India under Article 32 of the Constitution of India, 1950, challenging the Act as violative of the fundamental rights guaranteed by Articles 14, 25, and 26. Alternatively, writ petitions challenging the Act may be filed before the appropriate High Court under Article 226 of the Constitution, subject to the Supreme Court’s authority to transfer such petitions to itself for consolidated hearing. Waqf institutions that have been adversely affected by specific administrative actions taken under the Act may also challenge such actions before the Waqf Tribunals constituted under the Waqf Act, 1995, including by filing applications for extensions of the mandatory registration deadline under the proviso to Section 3B of the Waqf Act as amended. The Supreme Court’s assurance from the Union government that no waqf properties will be denotified pending the final hearing provides temporary protection against the most immediate adverse consequence of the Act.
Q3. What is the constitutional significance of Entry 28 of the State List for the challenge to the Waqf (Amendment) Act, 2025?
Entry 28 of the State List (List II) of the Seventh Schedule to the Constitution of India, 1950 grants the States exclusive legislative authority over charities and charitable institutions, charitable and religious endowments, and religious institutions. The federal dimension of the constitutional challenge to the Waqf Amendment Act, 2025 rests upon the contention that the Act’s grant of Union supervisory powers over State Waqf Boards, which are State bodies responsible for the management of religious and charitable endowments within the States’ territories, constitutes an impermissible encroachment upon the States’ exclusive legislative domain under Entry 28, notwithstanding that the Waqf Act, 1995 was enacted under Entry 10 of the Concurrent List relating to trusts and trustees. The Supreme Court of India, in S.R. Bommai v. Union of India, (1994) 3 SCC 1, affirmed that federalism is a basic feature of the Constitution that may not be abrogated, and the resolution of the federal dimension of the constitutional challenge will require the Court to examine the boundary between the Union’s concurrent legislative power over trusts and the States’ exclusive legislative authority over religious and charitable endowments.
Q4. What obligation does the State bear in relation to the protection of Muslim waqf properties under the Constitution of India, 1950?
The State bears obligations under the Constitution of India, 1950 to protect the rights of religious minorities, including the Muslim community, in the management and administration of their religious endowments. Article 26 of the Constitution guarantees every religious denomination the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, and to administer its properties in accordance with law. The State’s power to regulate religious endowments is constrained by the constitutional requirement, established in the Shirur Mutt case, that such regulation must not unconstitutionally interfere with the essential religious character of the institution or deprive the denomination of its right to manage its religious affairs. Additionally, Article 300A of the Constitution guarantees that no person shall be deprived of property save by authority of law, and the abolition of the doctrine of waqf by user without a transitional regularisation mechanism raises a prima facie challenge under this provision.
Q5. What is the Shirur Mutt doctrine, and how does it apply to the constitutional challenge to the Waqf (Amendment) Act, 2025?
The Shirur Mutt doctrine, established by the Supreme Court of India in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, holds that the State is constitutionally empowered to regulate the secular or non-religious aspects of religious endowments, including their financial administration and management of trust property, but that the State may not interfere with the essential religious practices of a denomination or with the denomination’s right to manage its own affairs in matters that are essentially and integrally religious in character. In the context of the constitutional challenge to the Waqf (Amendment) Act, 2025, the Shirur Mutt doctrine is directly applicable to the challenge under Article 26(b) to the mandatory inclusion of non-Muslim members on State Waqf Boards under the amended Section 14, since the management of waqf property is argued to be an essentially religious function inextricably linked to the Islamic religious tradition. The application of the Shirur Mutt framework to waqf governance, and the determination of which aspects of waqf administration are essentially religious and which are secular, will be central to the Supreme Court’s constitutional assessment of the Act.
Bibliography
Primary Sources
– Constitution of India, 1950, Articles 14, 25, 26, 246, 300A, Entry 10 (List III), and Entry 28 (List II), Seventh Schedule.
– Waqf (Amendment) Act, 2025 (Act No. 12 of 2025), Sections 3(r) and 14.
– Waqf Act, 1995 (Act No. 43 of 1995).
– Mussalman Wakf Act, 1923 (Act No. 42 of 1923).
– The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 (Supreme Court of India).
– S.R. Bommai v. Union of India, (1994) 3 SCC 1 (Supreme Court of India).
– In re: Waqf (Amendment) Act, 2025 (Consolidated Writ Petitions), Supreme Court of India (pending).
– Supreme Court of India, Interim Order, Writ Petition (Civil) No. 276 of 2025, dated 15 September 2025.
– Sikh Gurudwaras Act, 1925 (Act No. 8 of 1925).
– International Covenant on Civil and Political Rights, 1966, Articles 18 and 27, United Nations Treaty Series, Vol. 999.
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– Rajeev Bhargava, ‘Secularism and the Law of Religious Endowments in India’ (2021) 56(3) Economic and Political Weekly 42.
– Supreme Court Observer, Constitutionality of the Waqf (Amendment) Act, 2025, SCObserver, 14 September 2025.
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– Oxford Human Rights Hub, Weaponising Reform: The Waqf (Amendment) Act, 2025 and its Assault on Religious Freedom, OHRH, 8 June 2025.
