From Paternalism to Proceduralism: The Constitutional Contours of Waqf Reform

On 15 September 2025, a Bench led by Chief Justice B.R. Gavai passed an interim order in W.P. (C) No. 269 of 2025, refusing to grant a blanket stay on the Waqf (Amendment) Act, 2025. While parts of the law were restrained, such as the five-year practice requirement to dedicate property and the vesting of adjudicatory powers in the District Collector, the Court declined to suspend the statute in its entirety. The order preserves the legislative framework of reform while reading in procedural safeguards against arbitrariness.

This development follows one of the most debated legislative exercises of recent years. The Waqf (Amendment) Bill, first introduced in August 2024 and passed after marathon debates in both Houses in April 2025, sought to overhaul the Waqf Act, 1995. The Union described it as a long-overdue attempt to improve efficiency, accountability, and transparency. Critics denounced it as a frontal assault on Articles 25 and 26, undermining the Muslim community’s autonomy over its religious endowments. More than sixty-five petitions followed, filed by political leaders, clerics, and civil society organisations, challenging its constitutionality.

The interim order now marks a constitutional turning point. Rather than reverting to the paternalistic tradition of state domination over religious endowments, the Court has begun to chart a proceduralist path, one that defines legitimate boundaries of reform through safeguards, proportionality, and due process.

Judicially Enforced Proceduralism

The Court’s reasoning rested on the well-settled presumption of constitutionality. Drawing from precedents such as State of Bihar v. Bihar Distillery Ltd. (1997) and Madras Bar Association v. Union of India (2014), the Bench reiterated that legislation cannot be stayed wholesale unless a clear prima facie case of invalidity is demonstrated. CJI Gavai underlined this principle, observing that “a case was not made out to stay the entire statute.” This careful judicial restraint reflects fidelity to the doctrine of separation of powers, ensuring that legislative intent is not unduly thwarted by sweeping interim measures.

At the same time, the Court did not abdicate its constitutional duty of scrutiny. It identified specific provisions that warranted interim suspension to prevent excessive arbitrariness. On the question of the district collector acting as the final arbiter, the Court held that vesting adjudicatory power in the executive blurred the demarcation between administrative and judicial functions. This concern echoed the reasoning in Indira Nehru Gandhi v. Raj Narain (1975), where the Court struck down the conferral of judicial powers on non-judicial authorities.

Equally contentious was the five-year practice requirement, which mandated that only individuals who had “practiced Islam for five years” could dedicate property to a waqf. The Bench found this stipulation to be prima facie arbitrary and violative of Article 25. However, the stay was made conditional: it will remain in force only until the Union frames appropriate rules. This calibrated approach exemplifies judicial proceduralism, the Court refrained from rejecting the provision outright but subjected it to regulatory clarification.

Lastly, the issue of non-Muslim representation on Waqf Boards was addressed through a measured compromise. By capping the numerical strength of non-Muslim members, the Court sought to balance inclusivity with denominational autonomy under Article 26(b). The solution ensures plural participation in the governance of public religious trusts without diluting Muslim control over institutions central to their community life.

In essence, the Court’s interim order preserves the state’s prerogative to pursue reform in waqf administration while simultaneously ring-fencing it with constitutional guardrails. It is a demonstration of judicial restraint combined with vigilant protection of fundamental rights.

The Fall of “Waqf by User”

Perhaps the most significant non-intervention was on “waqf by user.” For over a century, properties used continuously for religious purposes could acquire Waqf status without formal dedication. The 2025 Amendment abolishes this route, requiring registration and documentation. Petitioners argued that this undermines centuries of community practice.

The Court was unmoved. It pointed out that registration requirements have existed since the Waqf Act of 1923. Properties left unregistered for a hundred years cannot claim sudden legitimacy now. This reasoning reflects the constitutional insistence on legality over custom. In doing so, the Court tacitly endorsed the Union’s claim that “waqf by user” had become a vehicle for encroachment, particularly of public lands, as seen in Andhra Pradesh where thousands of acres were notified as waqf without documentary foundation.

The jurisprudential move here is telling. The older model of paternalism where the state assumed supervisory control over endowments to shield them from misuse is being displaced. What emerges is a proceduralist model: if communities wish to preserve their religious endowments, they must comply with statutory procedures of registration, documentation, and accountability. Informality no longer suffices in a constitutional order.

From Paternalism to Proceduralism

The interim order reveals a broader constitutional trajectory. In cases such as Sri Adi Visheshwara v. State of U.P. (1997), the Court had upheld extensive state involvement in religious endowments, rationalised as necessary for preventing mismanagement. This paternalistic tradition gave the state sweeping powers, often at the expense of denominational autonomy.

The 2025 order signals a departure. The Court does not deny the state’s power to reform, but it insists that reform must be pursued through procedures that are transparent, proportionate, and non-arbitrary. This is consistent with the doctrine of “procedural due process” articulated in Maneka Gandhi v. Union of India (1978)[5]. The state may regulate, but only with fairness.

Thus, the refusal to grant a blanket stay was not deference to the state, but recognition that constitutional adjudication must proceed provision by provision, safeguard by safeguard. The Court has effectively transformed the Waqf debate from a political question of majoritarian intrusion into a legal question of procedural adequacy.

Conclusion

The constitutional contest over the Waqf (Amendment) Act, 2025, is far from settled. The final hearing will determine whether Parliament’s reforms impermissibly trench upon Articles 25 and 26. Yet the interim order has already set the tone: the era of unrestrained state paternalism is giving way to a regime of procedural constitutionalism.

By refusing to halt reform wholesale but restraining its most arbitrary aspects, the Court has charted a middle course. Waqf governance will no longer be left to informal custom or to unchecked state dominance. Instead, it must operate within a constitutional framework of documentation, transparency, and fairness. The path forward is clear: reform is legitimate, but only through procedure.

 
About the Author
Yashawardhana is a law graduate and former Research Fellow at India Foundation, where he conducted research and analysis on public policy. His experience spans legal research, judicial internships, and policy advisory, giving him a multidisciplinary perspective. Currently working in consulting, he focuses on strategy, policy, and governance, combining analytical depth with practical insight.


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