The contentious Waqf (Amendment) Bill of 2024 will soon become a law in force and, in the near future, a law in action. Sidestepping the political overtones of the Bill and of the ongoing debates on it, I have looked into it only from legal angles. The pros and cons of the Bill are to be examined in the light of the relevant provisions of the Constitution and the law which determines the scope and extent of Muslim law in the country.
The Arabic-Urdu word Wakf generally refers to what are known in English as religious and charitable endowments. So, where do we find Wakfs in the federal structure of the Constitution and distribution of legislative powers between the Centre and the states? This is to be determined with reference to Article 246 and the Seventh Schedule of the Constitution. The Union List in the Schedule which enumerates the subjects on which, according to the said Article, “Parliament has exclusive power to make laws” does not include religious and charitable endowments. Nor does the State List, on the subjects under which state legislatures alone can make laws, speak of them. These are mentioned in Entry 28 of the Concurrent List on the subjects mentioned in which both the central and state legislatures can make laws. Burial and cremation grounds, which too are religious institutions, are however included in the State List.
Articles 25 and 26 of the Constitution relate to people’s fundamental right to religion. Under the first of these, it is clearly provided that it will not restrict the State’s power to make laws to regulate or restrict any “secular activity associated with religion” or to provide for “social welfare and reform.” The other Article, relating to the communities’ freedom to manage religious affairs, mentions their rights to “establish and maintain institutions for religious and charitable purposes and to manage their “own affairs” in matters of religion.
{{/usCountry}}Articles 25 and 26 of the Constitution relate to people’s fundamental right to religion. Under the first of these, it is clearly provided that it will not restrict the State’s power to make laws to regulate or restrict any “secular activity associated with religion” or to provide for “social welfare and reform.” The other Article, relating to the communities’ freedom to manage religious affairs, mentions their rights to “establish and maintain institutions for religious and charitable purposes and to manage their “own affairs” in matters of religion.
{{/usCountry}}The scope and extent of Muslim law in India is regulated by the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of this Act mentions the subjects in respect of which the courts have to settle disputes between Muslim litigants in accordance with Muslim law, and Wakfs are among the subjects so specified. The effect of this Act is to be seen with reference to the several civil court Acts enacted before Independence which had subjected Hindu and Muslim laws to contrary custom and state legislation. The 1937 Act was enacted to supersede customs contrary to Muslim law but had no effect on the overriding effect of state laws.
Despite having power under Article 46 of the Constitution read with the Concurrent List under the Seventh Schedule, Parliament has never enacted any law for the majority community’s religious and charitable endowments. There are only state laws for such institutions, both general and for particular temples. On the contrary, a comprehensive law for the regulation of similar Muslim institutions (generally called Wakfs) was made by Parliament within the fourth year of the post-constitutional era and replaced in 1995 by another similar law. There were several local Wakf management laws enacted earlier all of which were gradually repealed — the last of these, of Uttar Pradesh, in 2005 — and replaced with the central Act.
The condition of being a practising Muslim for a specified period for creating a wakf conspicuously cuts into the principles of Muslim law, relevant provisions of the Constitution of India and well-established judicial precedents. These are summarised in Section 19 of DF Mulla’s renowned work on Muslim law as “Any person who professes the Muslim religion and acknowledges that there is none but one God and that Muhammad is God’s Prophet is a Muslim. It is not necessary that he should observe any particular rites or ceremonies or be an orthodox believer in that religion. No court can test or gauge sincerity of religious belief” (24th Edition by Tahir Mahmood, 2025). This provision of the Bill undoubtedly needs reconsideration.
The extent of State control on Wakf management has now been greatly enhanced under the Waqf (Amendment) Bill of 2024. The exercise ignores the provisions of Article 26 of the Constitution, mentioned here, relating to the communities’ rights in respect of religious and charitable institutions and management of matters of religion. The powers given to the local administrative and revenue officials are clearly excessive and disproportionate to the need for ensuring that there is no mismanagement or violation of law.
The Khojas and Bohras of India are devout Muslims. They belong to two different branches of the Ismaili denomination, known as the Nizaris and Mustalis respectively, and have always been governed in this country by the Shia version of Muslim law. The separate provisions for them introduced in the 2024 Bill for their Wakfs are discriminatory and uncalled for.
The law on “Wakf by user” is well established in the country by many decisions given in different periods of India’s legal history by the Privy Council and the Supreme Court. The unsavoury and unfair effects that were bound to result from the provisions of the Bill relating to this concept have been, to some extent, mitigated by the decision that they will not have retrospective effect.
The Wakf Act of 1995 was extensively amended by a law enacted in 2013 which had unnecessarily changed the spelling of the word Wakf to “Waqf” and replaced its plural (Wakfs) with the Arabic expression “Auqaf” — and this had created a lot of confusion, as the words Wakf and Wakfs are in international usage and are found in a large number of laws and numerous judicial decisions in India. This pedantic exercise of 2013 could have been very well undone by the amending Bill of 2024 but the opportunity has not been availed. This is inexplicable.
The government will do well to constitute a committee of legal scholars to look into the constitutional aspects and social utility of the Bill and wait for its report before putting it on the statute book.
Tahir Mahmood is professor of law and former member of the Law Commission of India. The views expressed are personal