Tradition on Trial: Addressing the Islamic Religious conundrums and Legal dilemmas in the Waqf Amendment Act 2025
The Waqf Amendment Act of 2025 raised a lot of questions because of its various conflicts. This article looks for instances where the amendment act goes against both Islamic religious and legal principles. Essentially, the waqf is a religious ritual and essential religious practice. In history, Stories about various waqfs can be found dating back to the time of Prophet Muhammad (pbuh). One of the most well-known stories is that of Bairuha, the most exquisite garden of Abu Thalha R, and he also adores it. They established this property as a waqf When he heard a new Quranic verse, "You will not attain righteousness until you spend of what you love" (Al-Imran 92)[1]. By the way, the culture of creating property as waqf continues. When it comes to Indian history, there are numerous stories about Waqf that date back to the Mughal period and continue until the present. Here the importance of discussing various aspects of Waqf arises.
What is Waqf?
Before delving into the definition, it is important to realize that the definition describes everything exactly as it is. So If the definition is altered, the concept changes as well. As a result, the definition holds significant value. For example, changing the definition of an elephant from a large plant-eating animal with large ears, long, curved ivory tusks, and a prehensile trunk to a small insect with a sting and living in a complex social colony with one or more breeding queens does not transform an elephant into an ant. Similarly, the Waqf becomes a Waqf only when it is truly defined according to Islamic Law.
According to Islamic law, waqf is the permanent dedication of property, whether movable or immovable, for a religious, charitable, or pious purpose recognized by Islamic law[2]. In the old Waqf Act, the definition of Waqf is too similar to the definition under Islamic law. It defines Waqf as "the permanent dedication of movable or immovable property by any person for any purpose recognized by Muslim law as pious, religious, or charitable"[3]. This definition is consistent throughout the Waqf Act of 1995 and the 2013 amendment. However, the New Amendment Act of 2025 changed the definition of waqf and altered its fundamental nature. This leads to the first query: who has the power to change a definition of religious practice from its original meaning to a new one?
The new amendment Act defines Waqf as the “Dedication of any person showing or demonstrating that he is practicing Islam for at least five years, of any movable or immovable property, having ownership of such property and that there is no contrivance involved in the dedication of such property"[4]. This definition creates legal and religious conflicts. Furthermore, this contradictory nature can be found in various provisions.
Why this Amendment?
Every government's purpose is to serve its people. They create laws and rules to maintain social order or adapt to change without harming stakeholders. Based on this, we can say that every new law has a purpose, namely to benefit the relevant parties. For instance, the Companies Act[5]was modified in 2013 to accommodate the evolving environment and give stakeholders a more practical framework. The same issue comes up with the Waqf amendment as well. What exactly is the purpose of this amendment? The real stakeholders of Waqf are Muslims; Do they want any changes? Is any change required for the social order? Here, the response is silence. The ongoing silence from the government is the first symptom of a problem that every secular person faces.
Legal and Religious conundrums in the Waqf Amendment Act 2025
Look at India; what a beautiful diversity, which embraces a variety of religious values that form secularism. It entails not only separating religion from the state but also treating all religions equally.
India's secularism is founded on the principle of Sarva Dharma Samabhava, which means equal respect for all faiths. The essence of this can be seen in the entire Constitution from the preamble to the end. This is why the Constitution begins with the words "we the people", implying the concept of inclusiveness, i.e., the inclusion of different religions, cultures, and faiths.
Article 25 of the Constitution[6] guarantees the fundamental right to conscience as well as the freedom to profess, practice, and propagate religion. This right applies to all citizens, regardless of religious affiliation or non-belief. The state can only limit this right and regulate religious practices if it is necessary for the public good and the protection of fundamental rights[7]. This is clearly stated in the landmark decision in the Bijoe Emmanuel case[8].
Waqf is a part of Islamic practice; according to Article 25, all Muslims have the right to practice Waqf. So, if any conditions or laws prevent any Muslim from performing the act, it violates the rights guaranteed by the Constitution. The new amendment prohibits new Muslims from practicing Waqf by changing the definition by adding different conditions, such as any person to any person who has been a practicing Muslim for at least five years, and adding the concept of showing or demonstrating. This leads to arbitrary discrimination between new and practicing Muslims, as there is a lack of intelligible differentia and rational nexus[9]. This is also contrary to the Islamic concept, as Islam allows anyone to establish waqf and does not classify Muslims as new or practicing for religious purposes. Essentially, a person becomes Muslim through his or her beliefs, so under Islamic law, anyone who believes in the faith of Islam can establish a Waqf. The consequences of this modification result in several things. Primarily, the concept of a practicing Muslim is not defined, and it does not specify who can certify one as a practicing Muslim and on what basis, so anyone can challenge the Waqf by claiming that the donor is not a practicing Muslim. In cases where the Waqf is at issue, this also results in subjective judgment.
Waqf is typically divided into two categories: Waqf by oral and Waqf by deed[10]. Both of these ideas are recognized by Islamic law. Essentially, Islam states that a Waqf is established through the donor's words, whether spoken or written, implying that the deed is optional but can be included to increase transparency, as stated in the new amendment. Another concept that was acknowledged by earlier legislation, taking into account India's Muslim culture, is waqf by user[11]. Since different properties were used for these legitimate purposes and were considered Waqf from the Mughal era, the new amendment removed it. However, the question now is why this removal and how it can be justified.
The idea of registering new waqfs is good, but it is not a good idea to require the registration of old waqfs through proofs because many of them were founded thousands of years ago; how can deeds and proofs support that after all this time?
The new amendment act says "Any Government property identified or declared as waqf property, before or after the commencement of this Act, shall not be deemed to be a waqf property"[12]. This opens the door for any Waqf property to be declared as government property. Furthermore, if a dispute arises regarding Waqf property, the property will remain non-Waqf property until the issue is resolved. This is a reminder of the Babari dispute, in which the judge in the court decided the case by praying to God, delaying the decision for a long time before making a decision that favored the majority and harmed the minority.
Another concept recognized unconditionally by Islamic law is waqf alal aulad; in the absence of aulad, this is regarded as standard waqf. The old law recognized it as well, but the new law permitted it with restrictions, such as taking into account the legal rights of other heirs, such as widows[13]. This means that it is not entirely considered Waqf, as stated in the saying, "Once a Waqf, always a Waqf."
The freedom to manage religious affairs is guaranteed by Article 26 of the Indian Constitution,[14] specifically for every religious denomination or segment of it. It gives them the authority to establish and maintain religious institutions, manage their religious affairs, own and acquire both movable and immovable property, and administer such property by the laws. So the mandated inclusion of non-Muslims on the Waqf board and council by the New Amendment Act was an outright attack on religious freedom. Also, Some provisions empower the state more than religious authorities, even though Waqf is a religious institution.
A clause that reads, "No land belonging to members of Scheduled Tribes under the provisions of the Fifth Schedule or the Sixth Schedule to the Constitution shall be declared or deemed to be waqf property,"[15] is another example of arbitrary discrimination that goes against the fundamentals of Islamic law. The necessary step is to form a good committee of Islamic scholars and government officials to study Waqf matters and current other encroachments on Waqf properties, and then make changes based on stakeholder needs and committee reports without harming the minority by protecting their freedoms and other fundamental rights guaranteed by the constitution. One question remains throughout the entire conflicting provisions: why was this amendment made, even though stakeholders and nonreligious individuals urge its revocation? Here, For secular people, the Supreme Court exists as a beacon of hope; as Kapil Sibal stated, "The only thing that is trustworthy in the country is the judiciary."
References
1. The hadees were reported in Sahih Al Bukhari(Hadees No:1461)
2. Babul Waqf,Fathhul mueen of zainudheen makhdoom
3. Section 3(r) of the Waqf Act of 1995 and Waqf Amendment Act of 2013
4. Section 3(r) of the Waqf Amendment Act 2025
5. The Companies Act 1956
6. Freedom of conscience and free profession, practice, and propagation of religion
7. 25(1) of the Constitution of India
8. Bijoe Emmanuel & Ors. vs. State of Kerala & Ors(1987 AIR 748, 1986 SCR (3) 518, AIR 1987 SUPREME COURT 748, 1986 (3) SCC 615, (1987) IJR 133 (SC), (1986) 3 SCJ 395, (1986) JT 115 (SC), (1986) 2 CURCC 744, (1986) 3 SUPREME 344, (1986) KER LT 1037, (1986) 99 MAD LW 89)
9. Intelligible differentia refers to a clear and discernible basis for distinguishing between groups of people or situations, whereas rational nexus requires that the basis for the distinction be logically related to the goal of the law.
10. Oral waqf is created through a verbal declaration of intention to dedicate property for religious or charitable purposes, whereas deed-based waqf is established through a written legal document.
11. Section 3(r)(1) of the Waqf Act, 1995
12. Section 3(c)(1) of The Waqf (Amendment) Act, 2025
13. 3(A)2 of The Waqf (Amendment) Act, 2025
14. Freedom to manage religious affairs
15. Section 3(e) of The Waqf (Amendment) Act, 2025