What are the Challenges for Waqf Act facing Litigation?
The Waqf Act in India, particularly in its original form (1995) and through its amendments (2013, 2025), has faced significant litigation due to various legal, administrative, and constitutional challenges. Below is a detailed overview of the key challenges fueling litigation, based on legal disputes, court observations, and stakeholder concerns:
1. Constitutional Validity and Alleged Discrimination
Challenge: Critics argue that the Waqf Act grants special status to Waqf properties, creating disparities compared to other religious endowments (e.g., Hindu temples, Sikh gurdwaras). Petitions have claimed this violates Articles 14 (equality) and 15 (non-discrimination) of the Indian Constitution by favoring one religious community.
Litigation Context: Public Interest Litigations (PILs), such as those filed by advocate Ashwini Kumar Upadhyay, have challenged provisions like Sections 4, 5, 6, 7, 8, 9, and 14 of the 1995 Act, alleging they confer “unbridled powers” to Waqf Boards to register properties without safeguards for other communities. Courts, including the Supreme Court in 2022, have dismissed some challenges as “abstract” unless specific grievances (e.g., property appropriation) are shown, but the issue persists in multiple courts.
2025 Amendment: The Waqf (Amendment) Act, 2025, has intensified this debate, with 15+ petitions in the Supreme Court arguing it infringes on Articles 14, 15, 21, 25, 26, 29, and 300A (property rights). Petitioners, including Jamiat Ulama-i-Hind and AIMIM leader Asaduddin Owaisi, claim the Act discriminates by imposing restrictions not applied to other religious endowments, such as mandating non-Muslim members on Waqf Boards.
2. Unfettered Powers of Waqf Boards
Challenge: Section 40 of the Waqf Act allows Boards to inquire and declare properties as Waqf, often without sufficient transparency or appeal mechanisms. Critics argue this leads to arbitrary claims, including on non-Waqf or disputed properties, sparking litigation from affected parties.
Litigation Context: Posts on X and legal critiques highlight cases where Waqf Boards allegedly encroached on non-Muslim or government lands, leading to disputes. For instance, in Telangana, only 20% of Waqf land is litigation-free, with many cases tied to unclear ownership. The 2025 amendment’s shift of authority to government-appointed collectors to decide disputed properties has raised new concerns about bias, further fueling legal challenges.
Impact: Over 40,951 cases are pending in Waqf tribunals, including 9,942 filed by Muslims against Waqf institutions, indicating internal mismanagement and external disputes.
3. Removal of ‘Waqf by User’ Doctrine
Challenge: The 2025 amendment eliminates the “Waqf by user” principle, which recognized properties used long-term for religious/charitable purposes as Waqf, even without formal deeds. Critics argue this threatens over 4 lakh properties (e.g., mosques, graveyards) with historical but undocumented Waqf status, exposing them to government takeover or private claims.
Litigation Context: Legal experts and organizations like Jamiat Ulama-i-Hind contend this violates Islamic jurisprudence and Articles 25 (religious freedom) and 26 (right to manage religious affairs). Petitions warn of communal tensions, as properties like dargahs could face new disputes.
4. Inclusion of Non-Muslims in Waqf Governance
Challenge: The 2025 amendment mandates non-Muslim members in the Central Waqf Council and State Waqf Boards, seen by petitioners as interference in Muslim religious autonomy, contravening Article 26. They argue no similar provision exists for Hindu or Sikh endowments.
Litigation Context: Owaisi’s petition and others claim this dilutes community control over Waqf properties, comparing it to state control over secularized religious assets, which the Supreme Court has previously struck down. The Supreme Court is set to hear these pleas, with hearings expected around April 16, 2025.
5. Application of Limitation Act
Challenge: The 2025 amendment applies the Limitation Act, 1963, to Waqf property claims, potentially barring old claims and enabling adverse possession challenges. Critics argue this undermines the “once a Waqf, always a Waqf” principle, as Waqf properties are meant to be inalienable.
Litigation Context: Legal experts like Rauf Rahim have warned this could lead to widespread disputes, especially for properties with unclear historical records, as seen in cases like Bet Dwarka’s island claims.
6. Lack of Judicial Oversight
Challenge: Waqf tribunal decisions have limited appeal options, often bypassing higher courts, which critics argue restricts transparency and accountability. The 2025 amendment attempts to address this but introduces state oversight, raising concerns about executive overreach.
Litigation Context: Petitions, including those in the Delhi High Court (120 pending in 2023), argue that civil courts, not tribunals, should handle property disputes to ensure fairness. The Supreme Court has noted that striking down the Act could benefit encroachers, complicating reforms.
7. Mismanagement and Encroachment
Challenge: Poor management, illegal occupations, and delays in surveys (e.g., Gujarat, Uttarakhand) have led to litigation. Of 8.7 lakh registered Waqf properties, 7% are encroached, 2% are under litigation, and 50% have unknown status, per government data.
Litigation Context: Cases like Mumtaz Yarud Dowla Waqf (2002 decree, resolved in 2023) highlight prolonged disputes due to mismanagement or dilatory tactics. The 2025 amendment’s push for digitization and audits aims to curb this but faces resistance over feasibility and state control.
8. Retrospective Provisions and ASI Monuments
Challenge: Section 3D of the 2025 amendment invalidates Waqf claims over Archaeological Survey of India (ASI)-protected monuments, potentially affecting historic mosques and dargahs. Critics argue this retrospective clause risks communal conflict and violates secularism principles.
Litigation Context: Owaisi’s petition warns of “mischievous claims” by divisive elements, citing the Places of Worship Act, 1991. This has led to urgent Supreme Court pleas, with Jamiat Ulama-i-Hind calling it a “majoritarian” move.
9. Procedural and Administrative Flaws
Challenge: The Act’s vague criteria for Waqf creation, lack of coordination with revenue departments, and incomplete surveys contribute to disputes. The 2025 amendment’s mandatory registration within six months is seen as impractical for historic Waqfs lacking documentation.
Litigation Context: Petitions challenge provisions like requiring proof of no “contrivance” in Waqf dedication, calling them subjective and discriminatory compared to other endowment laws.
Current Litigation Status
Supreme Court: As of April 2025, over 15 petitions challenge the 2025 amendment’s constitutionality, with hearings slated for April 16. The Centre has filed a caveat to ensure representation before interim orders.
High Courts: Around 120 petitions were pending across courts in 2023, many seeking uniform laws for all religious endowments. Consolidation efforts are ongoing.
Waqf Tribunals: Thousands of cases remain unresolved, with 9,942 involving intra-community disputes, reflecting governance issues.
Legal: Litigation underscores tensions between religious autonomy and state regulation, with courts balancing secular principles and community rights.
Social: Disputes over Waqf properties, especially post-2025 amendments, risk communal polarization, as seen in protests in Mumbai and Kolkata.
Policy: The government’s push for transparency (e.g., digitization, audits) clashes with accusations of overreach, complicating reforms.
The Waqf Amendment Act of 2025 is facing significant legal challenges in the Supreme Court of India.
Here are some of the key challenges and concerns raised by petitioners:
Key Challenges
Constitutional Validity:
Violation of Fundamental Rights: Petitioners argue that the amendments violate several articles of the Indian Constitution, including Articles 14 (equality), 15 (prohibition of discrimination), 21 (right to life), 25 (freedom of conscience and free profession, practice and propagation of religion), 26 (freedom to manage religious affairs), 29 (protection of interests of minorities), and 300-A (right to property).
Freedom of Religion: The amendments are seen as undermining the religious autonomy of Muslims and threatening their cultural and religious rights.
Restrictions on Waqf Properties:
Arbitrary Restrictions: The legislation imposes restrictions on the management and use of Waqf properties, which are seen as undermining the religious freedom of Muslims.
Inclusion of Non-Muslims in Waqf Councils: The inclusion of non-Muslims in Central and State Waqf Councils is challenged as it allegedly violates Article 26 of the Constitution, which guarantees the right to manage religious affairs.
Operational Changes:
Definition and Management: The Act introduces new definitions and management structures for Waqf properties, which are argued to contradict Islamic traditions and judicial principles.
Donation Conditions: The requirement that a donor must have been a practicing Muslim for five years to make a Waqf donation is seen as unprecedented and discriminatory.
Risk to Existing Waqf Properties:
Abolition of Waqf Status: The new law makes it easier for governments to take over properties that have historically been used as Waqf, threatening over four lakh religious places.
Political and Social Opposition:
Anti-Minority Sentiment: The bill has been criticized by opposition parties and Muslim organizations as being anti-minority and aimed at harassing minorities.
Protests and Public Backlash: The passage of the bill has led to protests across the country, reflecting widespread discontent among Muslim communities and civil society groups.
Legal Proceedings
Supreme Court Hearings: The Supreme Court has agreed to consider multiple petitions challenging the Waqf Amendment Act. A hearing is scheduled for April 16, 20255.
Government’s Response: The government has filed a caveat, requesting that no decision be made without hearing its arguments.
The Waqf Act, especially in the Indian context (primarily the Waqf Act, 1995, as amended), is often mired in litigation due to a mix of legal, administrative, and social challenges. Here are the key challenges it faces:
1. Title Disputes and Land Encroachments
Frequent litigation arises over the ownership and title of Waqf properties.
Many properties lack clear title deeds or proper records, leading to disputes with private parties, government agencies, or other religious bodies.
Encroachments on Waqf land, often by powerful individuals or institutions, are widespread and hard to evict due to prolonged legal battles.
Jurisdictional Issues
The Waqf Tribunal is meant to resolve disputes, but:
There’s confusion over which court/tribunal has jurisdiction.
In some cases, civil courts also entertain Waqf-related disputes, adding to overlaps.
Some High Courts have ruled differently on what kinds of matters tribunals can hear.
Lack of Proper Records
Incomplete or outdated surveys of Waqf properties mean that legal claims are hard to substantiate.
The Waqf Boards often do not have digitized, updated property lists, making them vulnerable to fraudulent claims or illegal sales.
Mismanagement and Corruption
Allegations of misuse or mismanagement of funds by Waqf Boards lead to both public outcry and legal actions.
Some trustees or mutawallis (caretakers) are accused of unauthorized leases or sales, which are later challenged in court.
Legal Ambiguities
Terms like “Waqf by user” (i.e., a property used for religious purposes over time, but never formally declared as Waqf) create interpretational difficulties.
Inheritance vs. Waqf: Disputes often arise when family members of a donor contest that property was part of a Waqf, claiming it was private.
Delays in Tribunal and Court Decisions
Even though the Waqf Act mandates speedy resolution (ideally within a year), cases drag on for years.
Lack of judicial resources, dedicated benches, or legal expertise in Waqf law compounds the problem.
Conflicts with Other Laws
Waqf properties often come into conflict with:
Land acquisition laws
Urban development authorities
State laws regarding religious endowments
This results in litigations across multiple forums and further delays.
Lack of Awareness and Representation
Many Waqf properties are litigated without proper legal representation or awareness by the Waqf Board.
Some local communities are unaware that the property is Waqf, leading to unintended encroachment and later disputes.
The Waqf Act in India, intended to manage and protect Waqf properties, faces several challenges leading to significant litigation. These challenges include:
Encroachment and Illegal Occupation: A major source of litigation is the widespread encroachment on Waqf properties by private individuals, corporations, and even government entities. Recovering these properties through legal means is often a lengthy and complex process.
Disputes over the Nature of Property: Litigation frequently arises due to disputes over whether a particular property is actually a Waqf property. Waqf Boards have been accused of arbitrarily declaring private properties as Waqf, leading to legal battles with individuals and communities. The recent Waqf (Amendment) Act, 2025, aims to address this by removing the Waqf Board’s power to unilaterally declare a property as Waqf.
Mismanagement and Corruption within Waqf Boards: Allegations of corruption, financial mismanagement, and lack of transparency in the functioning of Waqf Boards often lead to litigation. This includes issues like the illegal sale of land, misappropriation of funds, and improper leasing of properties.
Ambiguity and Interpretation of the Waqf Act: Certain provisions of the Waqf Act have been interpreted differently over time, leading to legal challenges and inconsistencies in implementation. For instance, the definition of a “practising Muslim” for dedicating property to Waqf can be ambiguous.
Lack of Proper Record-Keeping and Surveys: Incomplete or inaccurate surveys and a lack of updated land records for Waqf properties contribute to disputes and make it difficult to protect these assets legally.
Jurisdictional Issues and Lack of Judicial Oversight: Under the Waqf Act of 1995, decisions made by Waqf Tribunals could not be challenged in higher courts, limiting judicial review and potentially leading to unfair outcomes. The Waqf (Amendment) Act, 2025, aims to address this by applying the Limitation Act, 1963, to Waqf property claims, which could reduce prolonged litigation.
Political Interference: Waqf Boards, despite being legally autonomous, often face political interference in their management and decision-making processes, which can lead to disputes and litigation.
Constitutional Challenges: The Waqf Act has also faced constitutional challenges, with petitions filed questioning its applicability to only one religion and the absence of similar laws for other religious trusts.
The Waqf (Amendment) Act, 2025, seeks to address some of these challenges by introducing measures to improve transparency, prevent misuse of powers, streamline dispute resolution, and enhance the efficiency of Waqf administration. However, concerns remain regarding potential government overreach and the impact on the autonomy of Waqf institutions.
