Beyond The Obvious: The Waqf Amendment Act And The Supreme Court Of India's Unspoken Federalism Dilemma

Events Leading To The Implementation Of The Waqf Amendment Act, 2025

A Waqf can be defined as any permanent dedication of any movable or immovable property made by any person for religious, pious or charitable purposes acknowledged under the Muslim Law. The Waqf Amendment Act, 2025 which came into force to improve the administration and management of waqf properties in India, was received with widespread protests, political opposition, and the filing of suits in various courts across the country [1]. Protestors framed the Act as a secular infringement upon the religious freedom of Muslims, who are considered a  minority community in India under Section 2 (c) of the National Commission for Minorities Act, 1992 [2]. The looser regulations governing the state management of Islamic endowments and the order of ‘Waqf’ Funds management in the Act triggered intense debate about religious freedom in India. However, a more overlooked and more pressing issue in comparative constitutional law is the impact of the Act on the licensing of Indian federalism [3].

On September 16, 2025, the Supreme Court, as a matter of judicial economy, partly stalled the operation of the Act and paused sections such as 3C(2), 3C(3), and 3C(4) [4], which direct the State Government to designate an officer to conduct a lawful inquiry into a matter pertaining to the fact that a property is a waqf property or government property so that necessary corrections in revenue records can be made and a report can be submitted to the State Government. However, this indefinite order at first seems to address procedural and minority civil-rights issues. If any question arises as to whether any such property is a Government property, the State Government may, by notification, designate on Officer above the rank of Collector (hereinafter referred to as the designated officer), who shall conduct an inquiry as per law, and determine whether such property is a Government property or not and submit his report to the State Government.  

This article contends that the Waqf Amendment Act is a sign of the Union government’s legislative overreach regarding the Union’s control of concurrent or state jurisdictions. By centralizing the management of waqfs, the Act classifies the waqf management as a Union subject and remains violative of the Seventh Schedule, and the Basic Structure Doctrine as laid down in S. R. Bommai v. Union of India (1994) [5]. With the intent of assessing the claim, the article is divided into three parts. First, it outlines the legislative design of the amendments and shows where they encroach onto the state’s domain. Second, it engages with the Union’s purported rationale for centralization as ‘administrative convenience’ and situates it within the central constitutional case law on federalism. Third, it analyzes the Supreme Court’s interim order stating that the Council’s reasoning on federalism is implicit and should be explicit in the judgment.

Legislative Overreach Into The State Sphere

The Seventh Schedule of the Constitution of India places “land” and “rights in or over land” in the State list [6], and “trust and trustees, charitable and religious endowments, and religious institutions” in the Concurrent list [7], i.e, the list including subjects of common interests to both Union and the States and both Parliament as well as the State legislatures can make laws on these subjects. If one may take a look at Section 47 of the amended Act, the Act clearly centralises control by allowing the Central Government to direct the audit of any waqf at any time by an order via an auditor appointed by the CAG (Comptroller and Auditor-General of India), or by any officer designated by the Central Government for that purpose [8].

The Supreme Court has recognized the constitutional importance of state autonomy in these areas. In State of West Bengal v. Union of India (1962) the Court emphasized that states deserve recognition as property holders, and thus, the Union cannot force state governments to divest property [9]. This same reasoning is evident in the Court’s later decision in S. R. Bommai v. Union of India [10], which held that federalism is part of the Constitution’s basic structure. The 2025 Act ignores these foundational principles by permitting the Union executive to resolve disputes over state property, all without engaging state instruments.

The Act also alters the structure of the Central Waqf Council (CWC) in ways that increase Union control. The Act enables the Centre to centralize control over waqf records by managing a digital portal, thereby diminishing state waqf boards’ control over data and recordkeeping. Provisions like Section 36(3)(a) and Section 36(3)(f) direct boards to consolidate their records within a central system, thus, in effect, transforming them into administrative subordinates of the Union [11]. The introduction of Section 108B [12], which gives the Centre exclusive authority to set audit procedures and rules, further deepens this erosion of autonomy.

The impact of the Act is unambiguous. It shifts the balance from concurrent to unilateral central control. From a system of cooperative federalism, where the Union and the states share responsibility, it moves to a model of overt central supremacy. This is in opposition to the spirit of the Concurrent List, which is certainly one of federalism, state variation, and diverse implementation.

The Constitutional Stakes Of Federalism

The principle of federalism in India has always been contentious. Unlike the American model, India has a quasi-federal Constitution with not only a strong centre but also state authority, as evidenced in the State List, and the power of the Union is restricted to cases of national emergencies and other extraordinary circumstances. One may take a look at Kesavananda Bharati v. State of Kerala (1973) [13], where the Court held that the Parliament cannot amend the Constitution in a way that removes its essential features (Basic Structure Doctrine). Also, in S. R. Bommai v. Union of India [14], the Court explicitly stated that federalism is one such essential feature. Thus, even when Parliament acts under the Concurrent List, it legislates in a way that preserves the balance between the Union and the states.

The Waqf Amendment Act, 2025 disrupts the institutional balance by removing the state agencies and replacing them with central ones. It does not simply unify the processes across state borders but rather redefines the functions of adjudicating, recordkeeping, and auditing. The Court clearly articulated the federal balance in the Kuldip Nayar v. Union of India (2006), which can also be coined the ‘Federal’ case [15]. The Union government justifies its approach primarily on the grounds of efficiency and the willingness to attend to the disorder. However, and as the Court has also stated, ‘federalism is not the sum of provincial (state) administration.’ In the Kuldip Nayar case [16], the Court went on to say that the ‘federal principle is a principle of the constitution by which the several states of the Union of India are to be governed, which means that it cannot be applied as a mere gear of discretion.’ This principle needs to be respected as it governs the borders of states and the legislatures.

The Act advances a constitutional problem that goes well beyond the waqf management issue. If it is argued that Parliament can widely centralize religious endowments by promising transparency, it can also centralize other spheres that are mainly state governed, like education, agriculture, and health. This principle of administrative convenience will break the federalist principle which is central to the democracy of India.

The Illusion Of Administrative Convenience

The Union government has defended the Waqf Amendment Act, 2025, on the basis of efficiency, transparency, and accountability. It is claimed that the centralization of recordkeeping and dispute resolution will eliminate duplication, reduce corruption, and provide uniformity in the management of religious endowments. However, while these arguments may be politically appealing, they completely ignore the constitutional fact that the balance of federal relations cannot be overridden by the pursuit of administrative efficiency [17].

The Supreme Court has repeatedly stated that the division of powers for federalism in India must be seen within the context of the Constitution, not through an administrative lens. In Kuldip Nayar v. Union of India [18], the Court relying upon the historical context of the framing of the Indian Constitution and the specific provisions in the Constitution on division of powers, reasoned that federalism is not an administrative convenience, but a structural principle arising from the historical balance of central power and regional autonomy. To subordinate it to administrative convenience is, therefore, a denial of the balance of forces at the nation’s foundation.

Looking at the provisions of the new law, namely 36(3)(a) and 36(3)(f) [19], one might just see a requirement for consolidation of centralized digital waqf records. In fact, these provisions do strip state waqf boards of their informational autonomy and the Union executive gets to keep sensitive records of properties. The problem is compounded by the new Section 108B [20], which gives the Centre sole power to define procedures for auditing. The effect of these provisions, which ignore the cooperative nature of concurrent legislation, is to reduce the state boards to the status of mere implementing agencies for and of orders coming from the Centre.

The centralization of powers is aggravated further by the nature of the seventh schedule. Entry 28 of the Concurrent List gives power to the Union and the states to make laws on ‘charities and charitable institutions, charitable and religious endowments, and religious institutions.’ The intention of the framers was to provide overlapping jurisdictions, but also to preserve some level of state administrative variation. The amended Act effectively removes the states’ ability to independently determine processes or retain records in order to turn concurrent power into exclusive power of the Union. This is in stark contrast to the intention of the framers of the legislation for states to adjust their governance to the specific demands of their jurisdiction [21].

Looking at constitutions in a global, comparative perspective adds to the critique. In federations like Canada and Germany, concurrent powers are interpreted in ways that provide real provincial or state autonomy. In Canada, for instance, the courts have struck down federal laws that encroach too much on “property and civil rights,” which is a matter for the provinces. Germany’s Federal Constitutional Court also maintains that concurrent legislative power must recognize the Länder’s control over the administration of laws. In contrast, the focus of India’s Waqf Amendment Act is an attempt to use concurrent power as a Trojan horse for central dominance [22].

The Supreme Court’s Order

On September 16, 2025, the Supreme Court issued its interim order in the Waqf Amendment Act’s petitions. While the Court did not openly discuss federalism, its reasoning for staying certain provisions of the Act suggests an approach towards maintaining federal balance [23].

The Court stayed the operation of Sections 3C(2), 3C(3), 3C(4) which gave a designated officer by the State the power to lawfully conduct an inquiry over the legitimacy of a waqf property. The Court, by suspending these provisions, maintained the disputes with respect to waqf property would be adjudicated within the waqf tribunals. The Court also ordered that possession and revenue records would stay frozen until the tribunal reaches a conclusive decision. This, albeit a procedural safeguard, has remarkable implications for the federal construct of the country. It establishes, once again, the tribunal’s supremacy over union control and the adjudicative authority of state institutions over property disputes. The Court’s restrained language suggests a recognition of the need for balance and order within the federation, even if indirectly.

The Court’s reasoning is consistent with its previous decision in Government of Andhra Pradesh v. Andhra Pradesh Waqf Board (2022), where it identified the state’s proprietary interest and the need to prevent unilateral central encroachment on and expropriation of land [24]. By reiterating this reasoning, the Court has implicitly warned against unilateral central interference, reiterating its earlier position that state governments have a constitutional interest in preserving their property and, consequently, their institutional autonomy.

The second aspect of the interim order deals with the composition of the waqf boards and the Central Waqf Council. By limiting the percentage of non-Muslim members on these bodies, the Court justified its intervention as a protection of minority rights [25]. However, the order also indirectly constrains the Centre’s ability to overhaul the governance of waqfs in ways that would diminish state control. In other words, the Court has placed limits on how far the Union can reconstitute control over institutions, including the governance waqfs, that have historically been state governed.

The lack of comment on federalism is, therefore, not a coincidence. By justifying its order in terms of minority rights and procedural fairness, the Court has sidestepped a direct clash with Parliament while still ensuring state control. This may show the limits of the Court in political matters, but it also creates a problem: as long as a final judgment does not directly deal with the issue of federalism, Parliament will continue to push the boundaries of its concurrent powers.

Conclusion

The challenge to the Waqf Amendment Act, 2025 displays the gradual centralisation of Union power and the diminishing autonomy of the states. The provisions of the Act are not merely about religious freedom; they are about the very existence of cooperative federalism. If Parliament can centralise waqf governance based on the rationale of transparency, what is to stop it from centralising other areas of concurrent jurisdiction, like education, health, or even labour?

The Supreme Court’s interim order by staying of some provisions suggests an answer. But this is not enough. There is more at stake than just waqf properties or minority rights. It is also about whether the Indian Constitution will embrace federalism to sustain the fine balance between unity and diversity or whether centralization will upset that balance irretrievably. In essence, beyond the law relating to religious endowments, the Waqf Amendment Act is a harbinger of the erosion of state autonomy in India’s cooperative federal structure.

Footnotes

[1] “Contentious Waqf (Amendment) Act comes into force”, The New Indian Express, April 8, 2025, https://www.newindianexpress.com/nation/2025/Apr/08/contentious-waqf-amendment-act-comes-into-force.

[2] The National Commission For Minorities Act, 1992 (Act 19 of 1992), s.2(c) (India).

[3] Shalini Shukla and Chandra Prakash Singh, "Waqf Governance Post-Umeed Act, 2025: Challenges and Opportunities in Contemporary India," QURU’: Journal of Family Law and Culture 3, no. 3 (2025), https://doi.org/10.59698/quru.v3i3.486.

[4] The Waqf (Amendment) Act, 2025 (Act 14 of 2025), ss. 3C(2), 3C(3), 3C(4).

[5] S.R. Bommai v. Union of India, (1994) 1994 SCC (3) 1 (India).

[6] The Constitution of India, 1950, Schedule VII, List II, State List, Item 18 (Land).  

[7] The Constitution of India, 1950, Schedule VII, List III, Concurrent List, Item 28 (Charities and Religious Endowments).  

[8] The Waqf (Amendment) Act, 2025 (Act 14 of 2025), s. 47.

[9] State of West Bengal v. Union of India (1962) AIR 1963 SC 1241 (India). 

[10] 1994 SCC (3) 1 (India).

[11] The Waqf (Amendment) Act, 2025 (Act 14 of 2025), ss. 36(3)(a), 36(3)(f). 

[12] Ibid., s. 108B. 

[13] His Holiness Kesavananda Bharati Sripadagalvaru v. State Of Kerala And Anr. (1973) 1973 4 SCC 225 (India). 

[14] 1994 SCC (3) 1 (India).

[15] Kuldip Nayar v. Union of India & Ors. (2006) AIR 2006 SC 3127 (India).

[16] Ibid.

[17] Banveer Kaur Jhinger, "WAQF AMENDMENT BILL, 2024 A CRITICAL ANALYSIS," International Journal of Advanced Research 13, no. 04 (2025), https://doi.org/10.21474/ijar01/20801.

[18] AIR 2006 SC 3127 (India).

[19] The Waqf (Amendment) Act, 2025 (Act 14 of 2025), ss. 36(3)(a), 36(3)(f). 

[20] Ibid., s. 108B. 

[21] Rutba Peerzada and Muhammad Mutahhar Amin, "(wl-3755)-Waqf Amendment Bill 2024: Transparency, Communalism and Authority," Economic & Political Weekly 60, no. 1 (2024), https://doi.org/10.71279/epw.v60i1.42070.

[22] “What is an Islamic Family Waqf?,” Shuter Law, September 30, 2025, https://shuterlaw.com/islamic-family-waqf-canada.

[23] Dr Ranvijay Singh, “Legal Framework and Constitutionalism of Wakf (Amendment) Act, 2025,” International Journal for Research Trends and Innovation 10, no. 5 (2025), https://doi.org/10.56975/ijrti.v10i5.203949.

[24] State of Andhra Pradesh v. Andhra Pradesh State Waqf Board (2022) Civil Appeal No. 10770 of 2016 (India). 

[25] “No stay on waqf law but SC puts in guardrails: Limits DC’s powers, caps non-Muslim presence”, The Indian Express, September 16, 2025, https://indianexpress.com/article/india/supreme-court-hearing-pleas-validity-waqf-amendment-act-2025-10250560.