Two Members of Parliament from the Rashtriya Janata Dal (RJD), Dr. Manoj Kumar Jha and Faiyaz Ahmad, who represent the State of Bihar, have filed a writ petition in the Supreme Court, challenging the constitutional validity of the Waqf (Amendment) Act, 2025.
The petition claims that the amendments violate several fundamental rights guaranteed under the Constitution, including Articles 1, 14, 15, 21, 25, 26, 29, 30, and 300A.
“The Amendment Act weakens the administration of waqfs and enables excessive government interference in Muslim religious endowments,” the petitioners submitted.
The petition, filed through Advocate-on-Record Fauzia Shakil, challenges numerous clauses of the Amendment Act, including but not limited to Clauses 2A, 3(v), 3(vii), 3(ix), 4, 5(a) to 5(f), 6(a), 6(c), 6(d), 7(a)(ii) to 7(a)(iv), 7(b), 8(ii) to 8(iv), 9, 11, 12(i), 14 to 17(b), 18 to 23, 25 to 29, 31 to 35, 38, 39(a), 40, 40A to 44.
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One of the most contentious provisions in the Amendment is the removal of the concept of ‘waqf by user’ from Section 3(r) of the Act.
“This principle was clearly upheld by a Constitution Bench in M. Siddiq (D) thr. L.Rs v. Mahant Suresh Das & Ors., (2020) 1 SCC 1,” the petition points out.
Traditionally, properties used for religious or charitable purposes by the Muslim community over time acquired waqf status, even without a formal deed. The deletion of sub-clause (i) from Section 3(r), which earlier recognized this principle, now makes a formal deed compulsory. This change, the petitioners argue, puts at risk a significant number of existing waqfs that were created through usage and long-standing practice.
The petition further argues that the changes:
“Impair the ability of the community to maintain educational or cultural institutions tied to waqfs and violate the fundamental rights of minorities to establish and administer such institutions under Article 30.”
The amended provisions, by narrowing who can create waqfs and introducing criteria such as proof of practicing Islam for five years, restrict religious freedoms under Articles 25 and 26.
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A key point of challenge is the inclusion of non-Muslim members in the Central Waqf Council and State Waqf Boards, including removal of the requirement that the Chief Executive Officer be a Muslim.
“By mandating non-Muslims in administrative bodies governing Muslim charitable trusts, the Act violates denominational autonomy protected by Articles 25 and 26,” the petitioners argue.
They refer to Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954) 1 SCC 412, where the Supreme Court ruled that while the state can regulate religious institutions, it cannot dismantle internal management by those professing the relevant faith.
The petitioners have also opposed Sections 3D and 3E, which enable authorities to declare waqf properties invalid if they are termed "protected monuments" or lie within "protected areas." These sections may even prevent Scheduled Tribes who convert to Islam from creating waqfs.
“Such provisions amount to religious discrimination, violating Articles 14, 15, 21, and the rights of minorities under Articles 29 and 30.”
The Amendment, the petitioners argue, rolls back previously upheld protections and violates the doctrine of non-retrogression, which prevents regression of fundamental rights, as affirmed in Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1.
The original Waqf Act, 1995, was designed to safeguard and manage Muslim endowments. The 2025 Amendment, the petition says:
“Does not strengthen the system but seeks to reconfigure the nature of waqf itself, dismantling essential safeguards like waqf by user.”
The petition relies on K. Nagaraj & Ors. v. State of Andhra Pradesh, (1985) 1 SCC 523, to assert that if an amendment defeats the core purpose of the original law, it can be declared unconstitutional.Another critical issue raised is the removal of the two-year limitation period for challenging the waqf status of properties. Under the original Act, such challenges had to be filed within a maximum of two years.
“This opens waqfs to endless litigation, particularly where land is valuable or of strategic interest, weakening their charitable nature and burdening administrators,” the petition states.
The petitioners emphasize that many waqf properties — including mosques, dargahs, graveyards, and shrines — are deeply significant to the Muslim community. Allowing open-ended challenges could cause unrest and disturb social harmony.
“In a climate already sensitive to religious property disputes, these provisions may trigger unnecessary communal conflict and go against the spirit of unity and fraternity enshrined in the Preamble of the Constitution.”
