Waqf Amendment Act is a breach of trust
As F. W. Maitland, a renowned British legal historian, argued, the legal institution of trust forms one of the foundational pillars upon which the modern state is built. India is among the few modern countries that has a long-standing, mature legal and regulatory system concerning charitable trusts. This robust framework is largely a colonial inheritance, with its roots deeply embedded in English common law principles. Religious and charitable trusts, in particular, have received significant attention from both the Indian judiciary and legislature since the colonial period.
The origins of the modern regulatory system for religious trusts in India can be traced back to the Religious Endowments Act of 1863. This was a crucial period in Indian legal history that also saw the establishment of other foundational laws like the Indian Penal Code, the Indian Evidence Act, and the Indian Income Tax framework. The 1863 Act emerged from the British Crown’s commitment to a policy of non-intervention in the religious customs and practices of native communities—a promise made following the First War of Independence in 1857.
The Act explicitly prohibited British officers from managing religious properties and granted each religious community the autonomy to administer its own religious endowments. This marked a significant departure from earlier practices, particularly under the East India Company, which had often directly intervened in the management of religious trust properties through the Bengal Regulation Act 19 of 1810 and the Madras Regulation Act 7 of 1817. With the transfer of power from East India Company to the British Crown, a more secular and non-interventionist approach was adopted, which allowed religious communities to claim autonomy over their institutions and develop community-specific administrative frameworks through negotiation with the state.
The 1863 Endowments Act envisaged district-level committees professing the same faith, chosen from respective religious groups as a regulatory system over religious trusts. Their appointment was for a lifetime. However, the process of developing effective trust management systems took time. The British colonial administration often showed little interest in the efficient management of non-Christian properties. As Indian nationalism gained momentum and legislative bodies representing native communities grew in power, several communities began to push for more structured and legally sanctioned systems of religious charitable trust governance. In addition to that, Religious charitable trust properties were also granted other privileges, such as exemption from income tax and exclusion from the purview of the rule against perpetuities.
Significant developments in the regulatory system of religious trusts began in the 1920s. The Hindu community, particularly in South India—where temples held immense wealth and drew large pilgrimages—pioneered the creation of statutory religious endowment boards for the administration of temple properties. The Madras Hindu Religious Endowments Act of 1927, laid the foundation for the modern regulatory system governing Hindu religious trusts in India. It was the precursor to the board management system for religious trust properties in India.
Muslim communities, meanwhile, struggled to establish comparable regulatory structures across various provinces. The Musslaman Waqf Act of 1923 introduced a judicial supervisory system, placing district courts in charge of waqf oversight. However, this system soon proved inefficient in ensuring proper management of waqf properties. Inspired by the Hindu model, Muslim communities began to advocate for similar endowment board-based systems. Eventually, waqf boards were established based on statutes passed by provincial legislative assemblies.
After independence, the Constituent Assembly debated the future of religious and charitable properties. Many members favored the continuation of the secular approach introduced during British rule while preserving the charitable character of such institutions. The Indian Constitution eventually enshrined this principle in Article 26 (Freedom to manage religious affairs), granting every religious denomination the right to manage its own affairs in matters of religion. As per the Article every religious denomination or any section shall have the right
a) to establish and maintain institutions for religious and charitable purposes;
(b)to manage its own affairs in matters of religion;
(c)to own and acquire movable and immovable property; and
(d)to administer such property in accordance with law
Religious endowments were placed under the Concurrent List of the Indian Constitution, allowing both the Centre and the States to legislate on the subject. The first All India Waqf Act was passed in 1954, establishing waqf boards across states and union territories and creating the Central Waqf Council for oversight. Recognizing shortcomings in this system, later the Waqf Act of 1995 introduced reforms, including the establishment of waqf tribunals for speedy adjudication of disputes. Further amendments of 1995 Waqf Act, such as the one following the Sachar Committee Report in 2013, aimed to address mismanagement and protect waqf properties—efforts that even received bipartisan support, including from the BJP.
However, recent developments in waqf law mark a sharp departure from the secular governance framework that has guided religious trust management in India for over two centuries. The new legal changes curtail the protections and autonomy that Muslim religious endowments historically enjoyed—protections still available to other communities. It limits the legality of 'waqf by user' in favor of government claims, whereas other religious communities enjoy similar legal provisions to protect their ancient places of worship and religious assets under 'implied trusts' and 'customs'. It also imposes Limitation Act exclusively on Muslim charitable properties. The inclusion of waqf in the purview of the Limitation Act, for instance, weakens its legal immunity against misappropriation while all other religious properties enjoy such legal cover. Apart from that it places an undue burden on waqf donors by requiring them to prove adherence to the faith for five years in order to disburse from the properties. As per Islamic law, there is no such mandatory faith conditions to be a donor. It can even be from a non Muslim. As a plural society, India has been known for such inter religious charity traditions for centuries. You won't find such a faith test applicable to any kind of charitable giving in India.
This shift undermines the Muslim community's constitutional right to autonomously manage their religious properties and tips the balance of power in favor of government intervention. It effectively ends the secular, community negotiated model of waqf governance, replacing it with a top-down, state-imposed system. Many see this as a violation of the legal promises made since colonial times and a breach of the trust between the state and the Muslim community. The Sachar Committee Report had already highlighted widespread misappropriation of waqf properties by government agencies, and the new law risks exacerbating this trend.
In sum, this marks a serious departure from India’s historically secular and inclusive trust law tradition. Waqf boards and the Central Waqf Council are going to be increasingly perceived as extensions of state control, lacking legitimacy in the eyes of the very communities they were meant to serve. It is a blot on India's trust regulatory and adjudication system. The new waqf amendment stands as a cautionary example—an illustration of how legal reforms undertaken without adequate research, consultation, or consensus can erode a well-established legal structure and alienate a significant section of society. Future legal scholars may well study it as a case in how not to legislate.
Abdulla NC is a scholar in Waqf studies.
