Waqf is the most direct expression of Islamic philanthropy. The Quran does not use the expression “waqf”. However, some 20 verses encourage people to spend their wealth on charity. The Prophet created seven waqfs of date palm gardens. The Waqf (Amendment) Act, 2025, that tried to regulate such philanthropy, invited controversy and was challenged in the Supreme Court.
On Monday, the Court gave an interim order in response to the petitions. At 128 pages, the order is unusually long. Interim orders should ideally be brief, as the arguments on the merits of the case have yet to be heard. The Court examined a challenge to most provisions of the Act and stayed just a couple of them. The petitioners’ celebration of the small victory is largely unwarranted, as the court has rejected their arguments on most provisions.
Parliamentary provisions are indeed stayed in the “rarest of rare” cases, as laws are generally assumed to pass the test of constitutionality. Generally, no law is stayed in its entirety because the Constitution’s Article 13(2) clearly says that only the provisions that contravene fundamental rights are void. CJI B R Gavai and Justice AG Masih’s bench did exactly this in the interim order and stayed a few provisions of the Act.
The Court has temporarily stayed Section 3(r) of the Act till rules to determine who is a practising Muslim for five years are framed. This section of the interim order is problematic as it gives the executive officials powers to adjudicate the religiosity of citizens. Are we going to have moral policing along the lines of Iran? A person’s claim should be enough to determine his or her religious identity. Section 3(r) uses the term “professing Islam”, but the CJI Gavai-led bench has used the expression “practising Islam”. This gives state officials a say on religious rectitude – on the performance or non-performance of religious duties. In other words, a Muslim who prays just once a week on Friday or does not keep fasts or lies or takes bank interest or does not pay zakat may not be certified as “practising Islam”. Should a modern, liberal, and secular state be allowed to classify good Muslims and bad Muslims? The court’s justification that petitioners have themselves argued that waqf is unique to Islam is not a convincing reason to justify this exclusion. This is because the argument is in the context of a concept novel to Islam, where the owner loses control over his own property.
The right of a property owner has nothing to do with any religious law as it is part of the general jurisprudence, common to all legal systems. An owner is free to do whatever he wants with his property, including destroying or alienating it the way he or she wants. By denying a non-Muslim owner of properties the right to create a waqf, the Act infringes the ownership rights of non-Muslims. The petitioners must be disappointed that the Court did not find this provision problematic. Voluntary conversions are not prohibited. Religious conversion does not mean a loss of ownership rights over property. The Court’s response that he may create a trust or donate his property in any other way — a trust, for instance — is nothing short of restricting his freedom. A waqf is different from a trust. A waqf’s founder cannot take any benefits for himself or herself. Unlike trusts, a waqf is perpetual, irrevocable, and inalienable. The property in trust vests rights in the trustee, but in waqf, it vests them in God. If an owner does not want to create a trust, can the law force him?
Since a waqf can be set up for secular and social purposes like the construction of a road, hospital or school, how can a non-Muslim be prohibited from this philanthropy? The denial of this right appears controversial, especially because non-Muslims are permitted to be on the Central Waqf Council and Waqf Boards. It’s true that this right of non-Muslims was not specifically mentioned in the 1954 and 1995 Waqf Acts and was indeed included in the 2013 amendment. However, in judgments such as Peda Venkatsubbaranydu (1930) and Arur Singh (1940), the High Courts of Madras and Lahore upheld this right of non-Muslims. After Independence, in Motishah v. Abdul Gaffar (1956), the Nagpur High Court upheld the right of non-Muslims to create a waqf.
Similarly, the Court’s refusal to stay the application of a limitation law on the ground that it applies to all properties is a huge setback to the petitioners. Some Hindu endowment laws – such as those in Andhra Pradesh, Telangana and Tamil Nadu – do have such exemptions.
The biggest setback to the petitioners was on waqf by user. The Court found the abolition of such a waqf perfectly justified on the ground that a lot of government lands have been encroached upon. We should not forget that waqf boards are not private land mafia but a statutory authority under Article 12. It is the state government that notifies waqf properties in the gazette after a survey by public servants and recommendations by waqf boards. Moreover, a waqf by user has been consistently upheld by the larger benches of the apex court, including in the Babri Masjid judgment. Not extending the registration time beyond six months should be equally disappointing for the petitioners.
The court’s fixing of the number of non-Muslims in the Central Waqf Council and waqf boards may give some solace to the petitioners, but such a change should not have been opposed in the interests of diversity, even though Article 26 of the Constitution is categorical that the right to manage religious properties is the right of a religious denomination or any section thereof. Even Jains, Buddhists, and Sikhs who are Hindus as per Article 25 of the Constitution, are not allowed to become members of some Hindu Endowment Boards.
The petitioners should, however, be hugely relieved that the Court has found determination of title by the executive officers a violation of the separation of powers and stayed this provision in Section 3(c).
The matter is unlikely to be heard on merit any time soon, and the Waqf Act, 2025, would now be implemented with a few small modifications. Whether the government brings one law for all religious endowments is something that remains to be seen. The Waqf Act was a lost opportunity to initiate UCC.
The writer is vice-chancellor of Chanakya National Law University, Patna. The views are personal
