The Wakf Amendment Reads Like a Trust Audit. It Is a Property Rewrite.

The Wakf (Amendment) Act 2025 has been received in public debate as a procedural overhaul: a tightening of registration, an upgrade of audit, a rationalisation of dispute resolution. Read the parliamentary statements, the editorial commentary, the white papers from the ministry, and a single framing dominates the conversation — Wakf administration needed cleaning up, the new law cleans it up, and the rest is detail. I think this framing is wrong. The amendments do contain procedural changes, but the changes that will most outlast this Parliament are not procedural at all. They rewrite the property-law foundations of wakf. They alter the definition; they disturb the doctrine of wakf by user; they shift dispositive authority away from the Wakf Boards and the Tribunal regime that the 1995 Act erected; and they reopen, by a side door, the question that the Mussalman Wakf Validating Act 1913 was passed to close.¹ Each of these changes is substantive. None of them is described as substantive in the legislative record. The procedural framing has done the work that procedural framings always do — it has moved the substantive question off the agenda. The substantive question is the question the legislation should be judged on. That is my argument here.

Why the procedural framing has held

There are good reasons the procedural framing has held. Wakf administration in India has been in genuine difficulty for decades. The 1984 Amendment Act was itself preceded by a Wakf Inquiry Committee report that catalogued mismanagement, weak finances, and the failure of the Wakf Boards to perform their statutory functions.⁶ The Statement of Objects and Reasons of the 1984 Bill records that the Boards had 'failed to achieve the very purpose for which they have been established' and that the financial position of most was 'not happy'. The 1984 Amendment failed politically — only two of its provisions were brought into force, the rest stalled by community resistance to the Wakf Commissioner architecture — and the 1995 Act that replaced it was a compromise that softened the Commissioner figure into a Chief Executive Officer subordinate to the Board.² Even after the 1995 Act, the underlying complaint persisted: properties listed in the register of wakfs but not earning their stated income; mutawallis in arrears; alienations made in breach of the section 51 prohibition without effective remedy; tribunal cases pending for decades. Anyone who has worked anywhere near the Wakf Boards, in any state, will tell you the same thing. The administrative diagnosis is not a fiction. It is a fact.

So when a government brings a Bill that addresses registration, audit, and tribunal procedure, the natural reception — across the political spectrum, including by people who would not normally find themselves on the same side — is to treat the Bill as a response to a real problem. The procedural framing is comfortable because it is, in part, correct. There are procedural provisions in the amendment. They do address real failures of the 1995 regime. To the extent that the amendment is doing what it says it is doing, it is doing useful work. I do not want to be misread on this point. The objection is not that procedural reform is illegitimate. The objection is that the procedural framing is being asked to carry weight it cannot carry, because the most consequential provisions of the amendment are not procedural.

The doctrinal architecture being changed

To see why the substantive changes matter, the architecture they are operating on has to be set out. Wakf, as the 1913 Validating Act defined it and as section 3(r) of the 1995 Act preserved it, is the permanent dedication by a person professing Islam of any property for a purpose recognised by Muslim law as religious, pious or charitable.¹² Each word is doing work. Permanent is the property-law term: the dedication is not for a term of years, not revocable at the wakif's pleasure, not subject to defeasance. Dedication is the operative act — and in the Mahomedan-law theory adopted by the Privy Council in Vidya Varuthi v Balusami, the dedication operates to extinguish the wakif's ownership and to vest the property in God, with the mutawalli serving only as manager.⁴ The Indian Trusts Act 1882 expressly exempts wakfs from its scope precisely because wakf is not a trust in the English-law sense; the corpus is not held by the mutawalli on trust for beneficiaries, it is held in the implied ownership of God, with profits reverting to the dedicated purposes.⁵ This is not a doctrinal curiosity. It is the proposition on which the property-law character of every wakf rests.

The Wakf Act 1995, section 3(r), expanded the 1913 definition by inclusion. It said that wakf includes (a) a wakf by user — that is, a property which has been used over a long period for purposes recognised by Muslim law as religious, pious or charitable, and which will not cease to be a wakf merely because the user has ceased irrespective of the period of such cesser; (b) grants including mashrut-ul-khidmat; and (c) wakf-alal-aulad to the extent of the religious/charitable component.² Each of these inclusions has its own doctrinal history. Wakf by user codified what had been a feature of Mahomedan-law practice for centuries — that long, consistent, religious use was, of itself, evidence of a permanent dedication that may never have been documented in writing. The 1995 Act's drafters knew exactly what they were doing here: they were preserving in statutory form a property-law category that pre-dated the 1913 Act and pre-dated the Wakf Act 1923. Wakf-alal-aulad with the ultimate-charitable-benefit reservation is the category that the 1913 Validating Act was passed to protect against the Privy Council's hostility in Abdul Fata Mahomad Ishak v Russomoy Dhur Chowdhry.¹ Take away wakf by user and you have eliminated a category of property that the statute book has recognised since at least 1923. Take away wakf-alal-aulad and you have undone the work of 1913.

The dispute architecture of the 1995 Act is built on this property-law foundation. Section 4 provides for a Survey Commissioner; section 5 for the publication of the list of wakfs; section 6 for disputes regarding wakfs to be brought before the Wakf Tribunal within one year of publication of the list; section 7 for the Tribunal's power to determine disputes. The Tribunal, under section 83 of the Act, is a judicial body — its presiding officer must be of the rank of District Judge or higher, and its decisions are final subject only to the supervisory jurisdiction of the High Court. Section 6(5) ousts civil court jurisdiction in respect of the questions referred to in section 6(1).⁷ This is a substantive architecture for substantive questions: whether property X is or is not wakf is to be decided by a judicial body with specialised competence, on a defined timeline, subject to defined appellate review.

And the substantive principle that runs through this architecture is the Supreme Court's formulation in Sayyed Ali v AP Wakf Board, Hyderabad — once a wakf is always a wakf.³ A wakf, once created, retains its character permanently. Subsequent administrative actions do not nullify the original dedication. The character of the property is fixed at dedication. Mulla's commentary on Chapter XII of Mahomedan Law makes the same point at paragraph 174: 'once a wakf is always a wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication.'⁵ The property-law point is non-negotiable, and the entire administrative framework was constructed on top of it.

What the 2024–25 amendments actually do

Against this architecture, the 2024–25 amendments make four substantive moves. Each of them is described in the legislative record as a piece of procedural cleanup. Each of them, on inspection, is something else.

The first move is to the definition of who may create wakf. The 1995 Act's section 3(r) required only that the dedicator be a person professing Islam. The amendment introduces the requirement that the dedicator must have been a practising Muslim for at least five years and must own the property.⁸ The ownership requirement is presented as an anti-fraud measure — to prevent persons who do not own the property from dedicating it. Taken on its own this is unobjectionable; no system of property law allows non-owners to alienate. But the five-year practising-Muslim requirement is a different kind of provision. It introduces, for the first time in Indian wakf law, a status test for the wakif. Mulla records, drawing on the Privy Council, that even a non-Muslim may create a wakf for any purpose which is religious under Mahomedan law, provided it is also lawful according to his own religious creed.⁵ The 1954 Act restricted this — it confined wakf to dedications by persons professing Islam — and the 1995 Act preserved that restriction. The five-year practising requirement is a further restriction on top of an already-restrictive rule, and it operates at the level of the wakif's personal status. That is substantive personal-law content of a kind that the previous statutory regime did not contain. To bury it in a clause headed amendment to section 3 is to mischaracterise what is happening.

The second move is the omission of wakf by user from the inclusion list in section 3(r). The amendment, read with its transitional provisions, makes it considerably harder for a property to be recognised as wakf on the strength of long use alone. Wakf by user was, recall, a codification of a Mahomedan-law category that pre-dated the 1995 Act and that the 1995 drafters consciously preserved.² Its omission is not a procedural change. It is a substantive narrowing of the legal category of wakf. Properties that, under the 1995 Act, would have been recognised as wakf on the strength of user are, under the 2025 amendment, more vulnerable to being treated as non-wakf — and once treated as non-wakf, they are reachable by adverse possession, by the ordinary mechanisms of revenue law, by the routine operations of property administration. Mulla's paragraph 217 records that wakf property may be lost by adverse possession against strangers, and that the only barrier to such loss is the mutawalli's possession.¹² Narrow the category of what counts as wakf and the property-law exposure increases.

The third move is the reallocation of dispositive authority. Under the 1995 Act, the question whether a particular property is wakf was determined by the Wakf Board's entry in the list of wakfs published under section 5, subject to challenge before the Wakf Tribunal under section 6 within one year, with civil court jurisdiction ousted under section 6(5).⁷ The amendment replaces this with a determination by a designated revenue officer of the State Government, not below the rank of Collector, whose finding has primary force.⁸ This is not a procedural change. It is a transfer of dispositive power on the legal status of property — from a specialised judicial body answerable to a Wakf Tribunal regime, to a revenue officer answerable to the State Government. The Wakf Tribunal was designed, in the 1984 and 1995 regimes alike, to insulate this determination from executive influence — the same insulation principle that the Supreme Court has applied to other religious-endowment determinations from Tilkayat Shri Govindlalji Maharaj v State of Rajasthan onwards, where the distinction between the private property of a religious head and the religious endowment itself was held to be a matter for judicial determination on a defined record, not for administrative finding.¹¹ The amendment dissolves that insulation. The dispute architecture that the 1995 Act took the trouble to build — Tribunal as primary fact-finder, civil court jurisdiction ousted, High Court supervisory jurisdiction preserved — is being replaced with a revenue-court architecture that treats wakf-status determinations as a species of revenue administration.

The fourth move is the disturbance of the once a wakf is always a wakf principle. The amendment, in its transitional provisions, opens for re-examination wakf properties that were recorded as such under prior regimes — including those recorded on the strength of user under the 1995 Act, those recorded under the predecessor 1954 Act, and those recorded under the various state legislations (Bengal Wakf Act 1934, UP Muslim Waqf Act 1936/1960, Bombay Mussalman Wakf Amendment Act 1935) that the 1995 Act consolidated.⁷ Each of these recordings was, under the law of its time, a determination of wakf status that fixed the property's character permanently in the sense given by Sayyed Ali. Re-opening those recordings, even procedurally, is to put the substantive principle of once a wakf is always a wakf into a different position. The principle does not survive an architecture in which the determination of wakf status is always provisional, always reviewable, always reopenable. The character of the property is no longer fixed at dedication. It is fixed, instead, at administrative determination, and re-determinable.

The strongest case for the amendments

I want to be honest about the strongest case for the amendments, because the amendments do not lack thoughtful defenders, and the defence is not exhausted by the procedural framing I am criticising.

The serious defence runs as follows. Wakf administration has produced two distinct categories of problem. The first is internal mismanagement — mutawallis siphoning off income, leases at below-market rates, accounts unaudited for decades. That problem is responsive to the procedural reforms the amendment carries: better registration, better audit, faster dispute resolution, tighter restrictions on alienation. The second is the doctrinal expansion of wakf claims into properties that were not, on any honest reading of the historical record, wakf — most acutely through aggressive applications of the wakf-by-user doctrine and through entries in lists of wakfs that have, in some states, swept in government land, temple land, and private holdings without notice to the affected parties. The serious defenders of the amendment will say that the second problem is real, that the 1995 Act's section 40 power vested in the Wakf Boards to decide whether a property is wakf has been exercised, in some states, in a way that does not deserve the deference that the section 6(5) civil-court-ouster gives it, and that the remedy is to relocate the determination to a body — the District Collector or designated revenue officer — that has both wider competence in property records and less institutional reason to find for wakf status.⁹ On this view, the substantive changes are necessary precisely because the procedural changes are not enough. The Wakf Board's section 40 power had to be moved because the Board could not be trusted with it.

This is the steel-man and it has real force. The complaints about over-broad wakf-by-user claims are not invented. There have been cases — including some that reached the High Courts — in which Wakf Boards entered properties on lists of wakfs on flimsy historical evidence, and in which the section 6 one-year limitation operated to extinguish the rights of non-Muslim owners who did not even know that their properties had been listed. The doctrine of once a wakf is always a wakf, applied in that environment, produced injustices that the bench struggled to remedy because the statutory framework gave it little to work with. A defender of the amendment can say: the property-law architecture I have described was beautiful in theory and abusive in practice, and the amendment is the only way to discipline an institutional actor that the 1995 Act could not discipline by procedure alone.

I take this argument seriously, but I think it gets two things wrong. First, the cases of over-broad wakf claims are real but they are a tiny fraction of the wakf landscape; the great majority of entries in the lists of wakfs were properly made under the law as it then stood, on properties that have had unambiguous religious or charitable use for generations. To redesign the entire architecture for the minority of disputed cases is to throw away the property-law settlement for the institutional discomfort of policing the edge cases. Second, the proper remedy for over-broad wakf claims is to make the section 6 challenge mechanism more accessible — extend the limitation, require individual notice, allow civil-court intervention in cases of fraud or want of jurisdiction — not to dissolve the dispositive architecture itself. The amendment overshoots. It treats every wakf determination, including the millions of uncontested ones, as if they were vulnerable to the same charge of administrative over-reach that, in fact, attaches to a small subset.

What the test should be

The test for any wakf-law reform — and I think this is the test that should organise the constitutional review the amendment will now face — is whether it preserves the property-law character of wakf while strengthening its administration, or whether it strengthens the administration by hollowing out the property-law character. The 1995 Act passed this test. The 1984 Amendment Act, on the politically active provisions that were notified, passed this test. The 2024–25 Amendment fails it.

The 1995 Act strengthened administration without disturbing the substantive definition. It set up a Survey Commissioner; it published lists; it created Wakf Tribunals; it imposed audit obligations; it tightened the alienation prohibition in section 51 by requiring sanction of the Wakf Board for any sale, gift, exchange, mortgage, or transfer of wakf immoveable property.¹⁰ None of this touched the section 3(r) definition, the inclusion of wakf by user, the property-law principle that the dedication vests in God and the mutawalli is only manager, or the once a wakf is always a wakf rule. The administrative reform of 1995 was carried out within the property-law settlement of 1913. That is the model. The 2024–25 amendment does not follow it.

The substantive provisions of the 2024–25 amendment cannot be defended as procedural cleanup because they are not procedural. The personal-status test for the wakif, the omission of wakf by user, the relocation of dispositive authority to the revenue administration, the reopening of pre-existing wakf records — these are property-law moves and personal-law moves. Each of them deserves the kind of legislative scrutiny that property-law and personal-law moves traditionally receive. Each of them deserves analysis under Article 14, Article 25, Article 26, and Article 300A. None of that scrutiny has occurred at the level of public debate, because the public debate has been organised around the procedural framing the government chose to lead with. The framing has done its work. The substantive law has changed quietly, in the spaces the framing has hidden.

The standard that should apply

I want to close not with a prediction about the litigation, but with a proposition about how the bench, the commentators, and the public should evaluate the amendment. The standard that has applied to every major reform of personal-law-religious-endowment legislation in independent India is whether the reform respects the substantive character of the institution being reformed. The Hindu religious endowment legislation of the various states has been tested on this standard. The Sikh Gurdwara Act 1925 was tested on it. The Anandpur Sahib Resolution era debates on Sikh institutions were structured around it. The wakf legislation has, until now, been tested on it too — and the 1995 Act passed because it preserved the property-law character of wakf while reforming its administration. To exempt the 2024–25 amendment from the same standard, on the grounds that it is procedural rather than substantive, is to grant it a relief that no prior religious-endowment reform has been granted. The amendment should be judged by the standard that applied to the 1954 Act, the 1984 Act, and the 1995 Act. By that standard, the substantive provisions of the 2024–25 amendment do not pass. They are not procedural cleanup. They are a property rewrite presented as a trust audit. The bench will eventually have to decide whether to receive them as what they are or as what they advertise themselves to be. The right decision is the first. The wrong one will let the framing succeed where the substance should not.

What is at stake here is older than the 1995 Act and older than 1913. It is the recognition — built into Mahomedan law for fourteen centuries and into Indian statutory law for over a hundred years — that a dedication for religious or charitable purposes, once made, removes the property from the ordinary commerce of secular ownership and places it in a category that the secular state administers but does not redefine. That recognition is what the property-law architecture protected. The amendments now under review reach into that architecture from the outside, with procedural tools that are inappropriate to the substantive object. The right response is not to refuse all reform. The right response is to require reform to do its work within the substantive settlement, not against it.

A second proposition follows from the first, and it deserves explicit statement. The procedural framing has a political function as well as a doctrinal one. By presenting substantive changes as procedural cleanup, the framing collapses the constituencies that would otherwise scrutinise them. Property-law specialists do not engage with statutes that advertise themselves as audit reform; personal-law specialists do not engage with statutes that advertise themselves as registration reform; the bench, in turn, is presented with petitions that have to recharacterise the statute before they can challenge it. Recharacterisation is hard. The challenger has to first argue that the statute is something other than what it says, and only then argue that what it actually is, is unconstitutional. That extra step is real friction. The procedural framing exploits it. A serious response to the amendment has to begin by refusing the recharacterisation task and naming the substance directly. The substance, named directly, is this: the 2024–25 amendment narrows the legal category of wakf, transfers the determination of wakf status to executive officers, and undoes a property-law settlement that was reached in 1913 and preserved through every subsequent statutory revision. Whether that change is desirable is a question on which reasonable people will differ. Whether it is being honestly described is a question on which reasonable people should not differ.

There is a final point about institutional memory worth recording. The 1984 Amendment Act failed because it was perceived, correctly, as expanding executive control over wakf administration through the Wakf Commissioner architecture. The Muslim community resisted it; only two of its provisions were brought into force; the rest waited a decade for the compromise that became the 1995 Act. The 1995 Act succeeded politically because it returned dispositive authority to the Wakf Boards, with the Chief Executive Officer subordinate to the Board rather than above it. That history is recent enough that the legislators who drafted the 2024–25 amendment cannot have been unaware of it. The amendment moves in the opposite direction of the 1984–1995 compromise — it transfers dispositive authority not back to the Wakf Commissioner of the 1984 design, but further out, to revenue officers who sit outside the wakf-administration framework altogether. The institutional memory that produced the 1995 compromise has not been respected. Whether that disrespect is intentional or simply the product of legislative haste, the result is the same: a statute that revisits a settlement that took two decades to reach, and that did so on grounds — procedural reform of audit and registration — that did not require any of the substantive changes the amendment carries. A statute that wanted only to fix audit and registration would have amended sections 46 through 50 of the 1995 Act, which deal precisely with accounts, audit, and the powers of the Chief Executive Officer in relation to misreporting. It would have left section 3(r) untouched. It would have left section 6 and section 7 — the Tribunal architecture — untouched. It would have strengthened section 51 — the alienation prohibition — rather than weakening it through the new revenue-officer dispute mechanism. None of that is what the 2024–25 amendment does. The amendment touches every load-bearing provision of the substantive law of wakf, and it touches them in the direction of narrowing the legal category and transferring its administration to executive bodies further removed from the property-law tradition. That is not what the procedural framing promises. It is what the amendment delivers. The mismatch between stated grounds and actual content is the polemical core of this essay. If the amendment had done what it said it was doing, it would have been a continuation of the 1995 Act's project. By doing more, it has become something else.

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