'Section 40 of Waqf Act was unreasonable': Legal expert on why a legislative correction was necessary

President Droupadi Murmu on Saturday gave her assent to the Waqf (Amendment) Bill, 2025, passed by Parliament earlier this week in both Houses.The Act has sparked heated debates across India in recent days. In this context, THE WEEK spoke to Supreme Court lawyer Adv. Abhilash M.R. to understand the nuances of the new amendment and its potential impact on the ground. Edited excerpts:

Q. The WAQF Amendment Bill, 2025 has been passed by both Houses of Parliament. A crucial step taken by the government was removing the controversial Section 40 of the Waqf Act, 1995. From a legal standpoint, what were the key issues with this provision that led Union Minority Affairs Minister Kiran Rijiju to describe it as a "draconian" section in Parliament?

A: Under the Civil Procedure Code, anyone—whether an individual or a trust—can file a suit in a civil court if they have a claim over a property in someone else’s possession. That’s a well-established legal route.

But when it comes to Section 40 and the Waqf Board, the situation is different. The Board may collect information about any property and if it has "reason to believe" that a property belongs to Wakf—even if it’s just a claim—they have the authority to list it as Wakf property. The problem is, once that happens, it’s not a civil court but the Board itself that becomes the deciding authority. This shifts the burden entirely onto the affected parties, who often find themselves fighting a complex system to retain ownership of land they’ve occupied for decades.

That’s why this provision was seen as draconian. It gave the Wakf Board disproportionate power to take over properties based on their own assessment, without necessarily going through a transparent or judicial process first.

Even if you approach the Wakf Tribunal, the situation may not always be fair. The Tribunal includes a Muslim law expert, and while there’s nothing inherently wrong with having someone experienced in religious jurisprudence or theology, the concern arises when such a person is given authority to decide on property claims that may belong to someone else.

There may arise cases where people may not possess the proper documents to prove ownership, even though they’ve been in possession of the property for decades. On the other hand, the Wakf Board can claim a property as Wakf based on very broad criteria. They don’t necessarily need to produce a title deed. For instance, if someone donates a property as Wakf—even without having legal ownership of that property—the donation can still be recorded and recognised over time.

This creates a serious problem: a third party can declare someone else’s land as Wakf property, and unless the rightful occupant can provide definitive proof of title, the property may be considered legally sanctified as Wakf. This opens the door to arbitrary claims, where the burden of disproving Wakf status falls heavily on ordinary citizens—many of whom may lack formal documents despite longstanding possession. Such provisions were clearly unreasonable and arbitrary. And when this kind of arbitrariness is sanctioned by law, it leaves citizens vulnerable and helpless.

Yes. So, there are numerous situations where a person has been in possession of a property for decades—sometimes even their entire life—but lacks documentary evidence to establish a clear title. This often happens due to various social or human factors. Families may have been living on the land for generations without formal papers.

However, if the Waqf Board lays claim to such a property—even without having any valid documentation to establish ownership—the statute still protects their claim. That’s the crux of the problem and an affront to Article 14 of the constitution which guarantees equality before law or equal protection of law. 

Also read: What's Section 40 of Waqf Act? Minority Affairs minister Kiren Rijiju called it 'draconian'

Q. You have appeared in the Supreme Court for a family from Tamil Nadu that had to face the threat of eviction because the plot they lived in was declared Waqf property. Could you please share the context of that case? 

There was this illiterate family in Tamil Nadu whose ancestors had been residing in a 130-square-metre property since 1920. In Tamil Nadu, there's a law known as the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975. Under this Act, certain properties fall within the definition of “public premises.” Waqf properties were also included in this definition of public premises, through an amendment in 2010.

If someone is in occupation of such a property, an Estate Officer can initiate eviction proceedings under a summary process. The person in possession can, of course, challenge the eviction in a civil court or escalate it to the High Court, but the initial action itself does not require the Waqf Board to go through the regular legal route to establish ownership. This creates a shortcut for eviction.

In this case, the family had been living on the property for over 100 years, yet they had no documents to prove ownership. It’s a small property, and they are poor. Despite not having formal title deeds, they did have electricity bills and water bills in their name, which demonstrated long-term possession.

On the other hand, the Waqf Board—or more specifically, the Mutawalli (caretaker) of an adjacent Waqf property—claimed this land without producing any title documents or clear evidence. The only basis for their claim was a petition stating that the property belonged to Waqf.

The matter even reached the Supreme Court, where neither the petitioners nor the respondents were able to produce clear title documents. Yet, based on the Waqf claim, the court permitted the family to stay on the property for one more year and asked them to vacate peacefully within that time.

This highlights the legal imbalance created by Section 40 and related laws: even without concrete evidence, the Waqf Board’s claim receives statutory protection, while individuals with decades-long possession but no formal title are vulnerable to summary eviction.

Q. When Union Minister Kiran Rijiju presented the bill in Parliament, he highlighted the plight of over 600 families in Munambam, Kerala. The issue involves a dispute over 404 acres of land claimed by the Waqf Board. Originally endowed to Farook College in 1950, the land was sold to residents in the 1960s. In 2019, the Waqf Board declared it Waqf property, halting land tax payments and threatening evictions. Legal battles and protests are still going on. Will this new amendment solve the issue of Munambam families. If yes, how?

A. In fact, the government introduced Section 2A in the WAQF Amendment Bill, which clearly states that, once enacted, notwithstanding any judgment, decree, or order of any court, nothing in the Act shall apply to:

1. A trust established before or after the commencement of this Act, or
2. A body statutorily regulated under any law pertaining to public charities,
3. — if such a trust or body is established by a Muslim for purposes similar to a Waqf.

This means that if a Muslim has contributed to or established a trust for charitable purposes similar to those of a WAQF, and that trust is already regulated under any other statutory provision, the Waqf Act would not apply to it—regardless of any past or future court judgments.

Farook College is reportedly such a trust. The people from Munambam claim to have purchased land from Farook College. Since Farook College is a registered trust, any decision passed or pending before the Waqf Tribunal would not be applicable to this trust, by virtue of Section 2A.

So, prima facie, this amendment could mean that Farook College and the properties under its possession or control would be excluded from the purview of the Waqf Act.

In other words, even if a court has already passed a judgment, or does so in the future, such decisions would be rendered redundant in light of Section 2A, provided the property in question belongs to a statutorily regulated trust like Farook College.

The Munambam residents can pin their hopes on this provision—Section 2A—to protect their claim over the land they purchased from Farook College.

Secondly, the decision taken by the Waqf Tribunal will now be appealable before the High Court as Section 67 of the 1995 Act is amended. A time period of 90 days has been provided for filing such an appeal.

This provision offers an additional legal safeguard. Even if Section 2A is treated as a disputed issue, the decision of the Tribunal can still be challenged before the High Court, which can now examine the merits of the case—something that wasn’t possible earlier, when the High Court could only exercise limited judicial review under Article 226 of the Constitution. So, in this way, the Munambam issue could be significantly impacted by the new amendment.

Q. What is your opinion on the new amendment? Do you see any loopholes in its provisions that could potentially be misused against the rights of minorities?

Ans. I may not agree with every aspect of the new amendment, but I do think a legislative correction was very much necessary. For instance, the inclusion of non-Muslim members in the Waqf Board may spark legal debates. The bill also states that only a person practising Islam for not less than five years may donate property as waqf.  The criterion of 5 years may be seen as arbitrary. When the new amendment is challenged legally, the government would be required to answer this question. However, the claim that the amendment violates Article 25 of the Constitution of India is preposterous, as Article 25 (2) (a) makes it clear that the right to religious freedom under Article 25 (1)  does not prevent the state from enacting any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.

India