[This is a guest post by Anusha Misra.]
The Waqf (Amendment) Act of 2025 has introduced Clauses 4(ix)(a) and 4(ix)(d) in order to amend the definition of Waqf and waqif (the person creating a waqf) as stipulated by Section 3(r) of the 1995 Act. As per these clauses, the waqif now has to establish that they have been a follower of Islam for a minimum of 5 years.
The Union states that this period ensures that a person has “adequate” time for faith in the religion. Following the 2013 Amendment, Waqf was defined as “permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious, or charitable and includes….” The 2025 amendment restores the pre-2013 definition, with the effect that only a Muslim can create a waqf.
SG Mehta reiterated this, submitting that the Muslim Personal Law (Shariat Application) Act, which also requires a declaration regarding the practice of religion. He claimed that the 5-year condition is not intended to defeat any person’s rightful claims.
We will now rely on Article 14 to examine the constitutional validity of Clauses 4(ix)(a) and 4(ix)(d).
Article 14 stipulates that the state shall not deny any person equality before the law or equal protection within India’s territory. The Supreme Court has interpreted classifications as reasonable if they satisfy two criteria. First, that there should exist an intelligible differentia wherein the classification should distinguish between groups based on a clear and objective rationale. The second is a rational nexus to ensure the classification furthers the legislative intent. Any legislative classification failing these tests risks is struck down as arbitrary or discriminatory.
The “five-year practice” criterion creates a classification based solely on religious adherence and duration. While waqfs are inherently Islamic institutions, the restriction excludes non-Muslims and Muslims who cannot meet the temporal threshold. The lack of empirical or historical evidence linking the 5-year duration to deterring misuse undermines its reasonableness. The temporal threshold is arbitrary, as non-Muslims are restricted from creating waqfs even if they desire to do so in furtherance of Islamic principles. Thus, this classification does not have a reasonable nexus with the object of the Act. Preventing fraud and properly managing waqfs cannot inherently depend on the waqif’s religious identity.
The lack of procedural clarity establishes the arbitrariness of the classification itself. This creates a two-tier system of religious adherence that imposes a burden exclusively on one class of Muslims without demonstrating how this burden advances legitimate state interests in preventing fraud or ensuring proper waqf management. In Navtej Singh Johar v. Union of India (2018), the Court emphasized that “where a legislation discriminates based on an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.” The period of one’s conversion to Islam is an inherent trait of religious identity that cannot justify the basis of differential treatment without concrete reasoning. Hence, the amendment does not form a reasonable classification based on an intelligible differentia
Rational Nexus to Legislative Intent
The amendment aims to minimize legal disputes by improving the accountability mechanism of Waqfs. However, the five-year rule still fails to deter persons from misusing waqfs because fraudulent claims can still happen if the initiator complies with the religious and time requirements but does not have a fundamental objective. Thus, the classification fails to represent an equal relationship with what the law aims for, contravening Article 14.
Courts examine whether the classification reasonably furthers the legislative purpose when analysing the rational nexus requirement. Here, the government claims the five-year requirement ensures “genuine” faith before allowing waqf creation. This justification falters on multiple grounds. First, it presupposes that duration of practice correlates with sincerity of belief—an assumption that lacks empirical support and inappropriately entangles the state in religious evaluations. Second, the amendment’s stated purpose of reducing litigation and improving waqf management is not logically advanced by restricting who may create waqfs based on religious practice duration. The five-year practice rule exhibits precisely this kind of arbitrariness by imposing a temporal requirement without demonstrating how this specific timeframe—rather than three years, seven years, or any other period—rationally advances the law’s purpose. This arbitrariness becomes even more pronounced when considering that fraud prevention could be more effectively achieved through enhanced documentation requirements, financial disclosures, or property verification processes that apply equally to all potential waqif creators regardless of their religious history. Hence, the amendment poses a paradox.
Comparative Analysis with Other Religious Trusts
India’s legal system regulates Hindu religious endowments through statutes like the Hindu Religious and Charitable Endowments Act, 1951, and Christian trusts via general trust laws. The Indian Trusts Act of 1882, which applies to Christians, remains entirely neutral regarding the trustee’s duration of religious practice or depth of doctrinal adherence. The Hindu Religious and Charitable Endowments Act of 1951 focuses primarily on financial management, prevention of misuse, and administration without imposing faith-based eligibility criteria on trust creators. These laws do not stipulate temporal or religious qualifications for the individuals, further highlighting the waqf restriction’s discriminatory nature.
The comparative analysis reveals several constitutional concerns. First, the guarantee of equal protection under Article 14 entails equal protection for those similarly situated. Hence, similar entities will receive similar legal treatment. Religious endowments across faiths serve comparable socio-religious functions—facilitating worship, supporting religious education, and providing charitable services. The inconsistency in imposing temporal barriers for one religious community violates the principle of horizontal equity in Article 14, as there is no similar requirement for the other religious communities. Second, while the five-year practice rule applies equally to all Muslims, when viewed against the broader landscape of religious endowment laws in India, it becomes evident that the state is imposing unique burdens on Islamic charitable institutions not borne by their Hindu or Christian counterparts. Third, other endowment acts demonstrate that regulatory objectives, such as ensuring proper management, can be achieved without ”testing” a person’s religious identity. These Acts establish administrative oversight, financial accountability measures, and transparency requirements that apply regardless of religious credentials. Hence, there are less restrictive means of furthering the object of the Waqf Amendment without resorting to religious tests that burden fundamental rights. The historical evolution of endowment laws across different religious traditions further underscores this discriminatory treatment. The five-year mandate for converts introduces a novel religious-temporal test without precedent, inhibiting an individual’s right to faith and religious practice. No compelling government interest justifies this temporal restriction, as the sincerity of belief cannot be measured by duration alone. At the same time, established religions enjoy a different status—a direct contradiction to constitutional principles demanding equal treatment regardless of specific religious affiliation.
Progressive Reforms vis-à-vis Restraining Provisions
The amendment to the Waqf law presents a contradictory approach to gender equality in Muslim personal law. While it brings in inclusion by mandating female representation on Waqf Boards and strengthening inheritance protections for Muslim women, it simultaneously perpetuates discriminatory dynamics through its restrictions on the creation of Waqf.
By conferring the right to establish charitable trusts based on religious identity, the law impacts women who convert to Islam or those in interfaith marriages. The charitable autonomy of these women depends on paternalistic religious verification processes scrutinizing their faith’s legitimacy. This inconsonance in approach reveals how seemingly progressive legal reforms can inadvertently reinforce systemic barriers when they fail to address underlying assumptions about religious identity. The amendment thus furthers a system in which a woman’s charitable agency remains conditional upon religious categorization rather than recognizing her inherent right to philanthropic participation, regardless of her faith journey or marital choices. Thus, it undermines the very equality it purports to advance.
Sectarian Inclusivity and Exclusion
The Act’s sectarian representation requirements, while appearing inclusive by mandating seats for Shia, Sunni, Bohra, and Aghakhani communities on State Waqf Boards, create a paradoxical framework when combined with the temporal criteria. This five-year practice rule establishes a complex stratification of religious legitimacy that fails to acknowledge the rich diversity within Islamic traditions and practices. This leads to the creation of an arbitrary tiered system not just between Muslims and non-Muslims but within the Islamic community itself. Certain sects have differing procedures for religious initiation that do not align with standardized temporal criteria. This intra-religious discrimination undermines the very purpose of inclusive representation and reveals the provision’s fundamental irrationality. By establishing an artificial timeline for religious legitimacy that operates identically across all Islamic sects despite their differences, the law creates inequitable outcomes that contradict its apparent commitment to honouring Islamic diversity. The provision thus fails to meet a basic standard of constitutional rationality by treating fundamentally different situations with rigid uniformity.
Closing Remarks
The Waqf (Amendment) Act of 2025 presents a constitutional paradox. While introducing seemingly progressive measures such as gender representation and inheritance protections, it simultaneously erects regressive barriers through its five-year practice requirement. This requirement fails both prongs of Article 14 scrutiny: it lacks intelligible differentia by arbitrarily distinguishing between Muslims based solely on duration of practice, and it demonstrates no rational nexus to the legitimate objectives of fraud prevention and improved waqf management.
The five-year practice rule represents more than a technical legal defect—it embodies a fundamental misalignment between means and ends in religious regulation. The state impermissibly positions itself as an arbiter of religious authenticity by requiring Muslims to “prove” their religious commitment through temporal adherence. This not only violates constitutional principles but also undermines the very foundation of India’s secular democracy, which guarantees equal citizenship regardless of religious identity or history.