Owaisi Challenges Waqf Amendment Bill In Supreme Court; Says It Strips Muslims Of Right To Manage Their Own Religious Affairs

Asaduddin Owaisi, Member of Parliament representing the Hyderabad constituency in Lok Sabha, has filed a writ petition in the Supreme Court challenging the constitutionality of the Waqf (Amendment) Bill, 2025 on the grounds that the Amendment takes way the protection accorded to the waqf under Article 26 of the Constitution while retaining such protection for religious and charitable endowments of other religions.

It is, therefore, in violation of Articles 14, 15, 21, 25, 26, 29, 30, and 300A of the Constitution of India and is manifestly arbitrary, the petition notes.

"The Amendment Act, 2025 marks a departure from this consistent progression towards affording greater protections to the rights of the Muslim community under Articles 25 and 26 of the Constitution and charts a new course of diluting the protections to waqfs undermining the rights of the minority communities in its properties and expanding the interference of the State over waqf administration," the petition. 

It is stated in the petition that the Amendment also takes away from waqfs various protections which were accorded to waqfs and Hindu, Jain, and Sikh religious and charitable endowments alike.

"This diminishing of the protection given to waqfs while retaining them for religious and charitable endowments of other religions constitutes hostile discrimination against Muslims and is violative of Articles 14 and 15 of the Constitution, which prohibit discrimination on the grounds of religion."

Owaisi has specifically challenged the constitutional validity of clauses 2A, 3(v), 3(vii), 3(ix), 4, 5(a), 5(b), 5(c), 5(d), 5(f), 6(a), 6(c), 6(d), 7(a)(ii), 7(a)(iii), 7(a)(iv), 7(b), 8(ii), 8(iii), 8(iv), 9, 11, 12(i), 14, 15, 16, 17(a), 17(b), 18, 19, 20, 21(b), 22, 23, 25, 26, 27, 28(a), 28(b), 29, 31, 32, 33, 34, 35, 38, 39(a), 40, 40A, 41, 42, 43(a), 43(b), and 44 of the 2025 Act. 

Who can create waqf 

Clauses 3(ix)(a) and 3(ix)(d) of the Bill on who can create waqf have been challenged as being manifestly arbitrary, vague, and unconstitutional restrictions. As per this clause, a person has to be a practising Muslim for at least 5 years to create a Waqf.

It is argued that the restriction on who can create a waqf is in direct conflict with Sections 3 and 4 of the Muslim Personal Law (Shariat) Application Act, 1937, which does not prescribe any other condition except that a person must be Muslim, competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872 and a resident of the territories to which he 1937 Act extends.

"Requiring the waqif to show or demonstrate that they have practised Islam for at least five years undermines constitutional protections under Articles 14, 15, and 300A of the Constitution, as it discriminates against recent converts by selectively preventing them from seeking religious merit immediately upon conversion by disposing of their property in a manner they deem fit.

Further, the impugned amendment imposes an additional requirement of the waqif 'demonstrating' that he has been practising Islam for at least five years, placing a third-party authority in a position to judge the practice and adherence of a citizen's faith, which makes a mockery of Article 25."

It has also been stated that Islamic law has historically permitted even non-Muslims to dedicate property as waqf. This provision was carried forward in the Waqf Act, 1995, as Section 104, and in 2013, an amendment was introduced in the 1995 Act by which the words “by a person professing Islam” were replaced with the words “by any person” in the definition of waqf, permitting non-Muslims to create valid waqfs, beyond what had already been allowed by virtue of Section 104. 

"Therefore, Clauses 3(ix)(a) and 3(ix)(d) of the Amendment Act, especially when read in conjunction with Clause 40 of the said Act, by which Section 104 of the 1995 Act has been omitted, is not only unconstitutional but also effectively reverses years of progress and evolution of the waqf legislation."

The petition also challenges this amendment as it requires demonstrating that there is no 'contrivance' involved in the dedication of the property. 

"This also gives another vague and entirely subjective ground for the authority to invalidate a dedication of property on a ground that does not exist in any other law relating to any other endowments of any other religion. This is again violative of Articles 14 and 15 of the Constitution."

Derocognition of waqf by user 

The petition states that the principle of waqf by user is a well-established rule of evidence under Islamic jurisprudence, which has also been upheld by the Supreme Court. The judgment in M Siddiq v. Mahant Suresh Das (Ayodhya case verdict) has been referred to note that the Supreme Court affirmed that Muslim law recognises oral dedication and that the existence of a waqf can be legally recognised in situations where property has been the subject of public religious use since time immemorial, even in the absence of an express dedication.

"Therefore, the derecognition of this principle would not only jeopardise the status of numerous ancient waqf properties that rely on this principle to establish their existence but also run contrary to established legal precedent, including the judgment by a Constitution Bench of this Hon'ble Court. By exposing historic waqfs, including mosques and dargahs, to encroachment and legal challenges, Section 3(ix)(b) of the Amendment Act undermines the State's constitutional duty under Article 25 and the Places of Worship (Special Provisions) Act 1991 (“1991 Act”), which contains the legislative manifestation of the doctrine of non-retrogression that this Hon'ble Court in M Siddiq (supra) has recognised as being an essential facet of secularism, which forms a core element of the basic structure of the Constitution of India."

Inclusion of non-Muslim members in Waqf Board

Lastly, it has been submitted that the inclusion of non-Muslim members into the Central Waqf Council and State Waqf Boards, undermines the autonomy of the Muslim community in managing properties dedicated for their religious and charitable purposes, in blatant contravention of Articles 14, 15, 25 and 26 of the Constitution. 

"[In] Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, this Hon'ble Court established a simple test: while the institutions and properties of a religious denomination may be subject to regulatory measures, the fundamental right to administer them cannot be legislatively abrogated. By allowing the government to nominate a majority of non-Muslim members, these amendments effectively strip the Muslim community of its right to manage its own religious institutions, in direct violation of the test laid down in Shirur Mutt (supra) and Article 26 of the Constitution"

Provision 

Sections 3D and 3E of the Amendment Act have also been challenged.

Section 3D prohibits the creation of Waqf over a property declared as an ancient protected monument or an archaeological site

It is stated Section 3D is ex facie unconstitutional as it retrospectively renders void any declaration or notification previously issued under any extant law of waqfs if the property to which the notification relates is a 'protected monument' or a 'protected area' within the Ancient Monuments Preservation Act, 1904, and the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

"This places a question mark on hundreds of properties which are places of worship and have been continuously in use for Islamic worship for centuries. This has the potential to create conflict and vitiate the communal atmosphere in the country, particularly in relation to mosques, dargahs and other places of Islamic worship where mischievous claims have been made by divisive elements for political gain. As such, this is contrary to the principle of secularism which is recognised as a basic feature of the Constitution by this Hon'ble Court in SR Bommai & Ors v. UOI (1994).This also has the potential of reopening wounds of the past, and undermining the objectives of the 1991 Act, which has been elevated to the status of a constitutional principle by this Hon'ble Court in M Siddiq (supra)."

Section 3E is ex facie unconstitutional as it deprives members of Scheduled Tribes of the right to dedicate property by way of waqf.

"Unlike Scheduled Castes, members of Scheduled Tribes do not lose their status as such upon conversion to another religion. Therefore, members of Scheduled Tribes who convert to Islam retain their tribal status but at the same time, take on the identity of Muslims. The impugned amendment deprives such persons of their right to freely practise their religion under Article 25 and 26 of the Constitution by disallowing them from practising an essential element of their faith. It also unjustly interferes with their right to property rendering Article 300A nugatory. This amendment is also in violation of Articles 14 and 15 as it amounts to hostile discrimination between members of Scheduled Tribes on the grounds of religion and between Muslims on the grounds of their tribe. As such, this amendment is manifestly arbitrary and unconstitutional, and deserves to be struck down."

The Bill, which was passed by the Rajya Sabha today, is yet to receive the Presidential Assent. The petition was filed today 10.50 AM.

The petition has been filed by AOR Lzafeer Ahmad BF.