Why the WAQF (Amendment) Act, 2025 is unconstitutional

Advocate Md Iquebal Ahmed *

Mass rally protests Waqf Amendment Act at Yairipok Tulihal on April 11 2025 :: Pix - Chronicle News Service

Introduction

The WAQF (Amendment) Act, 2025, now part of India’s statutory framework following Presidential assent, has sparked significant legal scrutiny. Though projected as a reformative measure for better management of WAQF properties, the Act has been criticized for violating several provisions of the Indian Constitution.

This article offers a detailed analysis of the unconstitutional nature of the law, based solely on Constitutional principles and jurisprudence—without reference to any individual or political position.

1. Violation of Article 26 : Religious Autonomy Undermined

a. Interference in Religious Administration

The amended law allows for increased Government control, including the appointment of administrative officials and collectors to oversee WAQF institutions. This is a direct infringement on the right of a religious denomination to manage its own affairs—a core component of Article 26(b) and (d). WAQF, as an institution rooted in Islamic religious tradition, must remain under the control of the community it serves.

b. Inclusion of Non-Adherents in Religious Bodies

The Act permits the appointment of non-Muslims in WAQF Boards. While this may appear inclusive, it distorts the religious character of the body and infringes upon the community’s right to preserve and control its own institutions — as guaranteed under Article 26.

2. Violation of Article 25: Curtailing Freedom of Religion

a. WAQF as Religious Practice

Creating and managing WAQF is not a mere administrative function but a religious act of charity and piety in Islam. State interference in how WAQF properties are administered, allocated, or restructured thus impinges on the fundamental right to practice religion freely.

b. Suppression of Religious Expression

By altering the composition and authority of WAQF boards and permitting Government interference in religiously mandated endowments, the Act interferes with core practices of Islam. This consti- tutes an unconstitutional restraint on religious freedom.

3. Violation of Article 14 : Equality Before Law

a. Targeting a Specific Community

The Act disproportionately regulates Muslim religious endowments while other religious communities are not subject to such intensive statutory oversight. This selective targeting is arbitrary and violates the principle of equality.

b. Unchecked Executive Discretion

The amended law grants vast powers to District Collectors and State officials to declare, de-notify, or reallocate WAQF lands. These powers are not guided by transparent or judicially reviewable standards, violating the principle of non-arbitrariness enshrined in Article 14.

4. Violation of Article 300A: Right to Property

a. Administrative Overreach

The Act empowers authorities to unilaterally decide the nature of WAQF land — including cancellation of WAQF status or transferring ownership — without recourse to judicial determination or compensation. This administrative deprivation of property without due process contradicts the essence of Article 300A.

5. Violation of the Basic Structure Doctrine

a. Breach of Secularism

Secularism requires the State to maintain a principled distance from religion. However, by involving itself in the internal functioning of a specific religious institution and altering its faith-based administrative framework, the Act violates the secular fabric of the Constitution.

b. Denial of Judicial Remedies

By transferring dispute resolution from Courts to administrators, and omitting clear avenues for legal redress, the Act weakens judicial review, which is central to the basic structure.

6. Excessive Delegation and Absence of Procedural Safeguards

a. Uncontrolled Discretion

The WAQF (Amendment) Act grants adminis- trators and district authorities wide-ranging discretion — including on matters of title, usage, or validity of endowments — without clear procedural guidelines or judicial checks. This violates the doctrine of reasonable classification and due process.

7. Infringement of Minority Rights under Articles 29 and 30

a. Cultural and Educational Institutions at Risk

WAQF properties often support minority-run schools, colleges, and cultural centers. Increased Government control over these properties may result in reduced autonomy and funding, violating the rights conferred under Articles 29 and 30.

8. Retrospective Effect and Legal Uncertainty

a. Unsettling Established Rights

If the Act is applied retrospectively to WAQF properties that were already registered and legally adjudicated, it not only unsettles settled rights but also introduces legal uncertainty, which undermines the rule of law.

9. Violation of Constitutional Morality

a. Majoritarian Imposition on a Minority Practice

By diminishing the autonomy of WAQF institutions and opening their administration to potentially non-adherent control, the Act undermines the dignity and religious identity of a minority group. This violates the moral compass of the Constitution.

Conclusion

The WAQF (Amendment) Act, 2025 stands on Constitutionally shaky ground. Its provisions violate multiple fundamental rights and Constitutional doctrines:
- Article 25 and 26: Restriction of religious practice and administration;
- Article 14: Discrimination and arbitrariness;
-Article 300A: Deprivation of property without judicial due process;
-Articles 29 and 30: Undermining minority rights;
- Basic Structure: Weakening secularism, judicial review, and the rule of law.

In a Constitutional democracy, no law — regardless of its stated objective—can stand if it undermines the founda-tional values of liberty, equality, and secular governance. The WAQF (Amendment) Act, 2025, in its current form, must therefore be subjected to Constitutional review and reconsideration.