*Adhya Pandey and Navdha Sharma
(Source:Mint)
The article examines the Waqf (Amendment) Bill, 2024, situating it within the frameworks of settler colonialism, capitalist governance, and majoritarian nationalism. It argues that the Amendment by demanding bureaucratic proof, abolishing waqf by user, and restructuring religious bodies to turn them into state-controlled entities, undermines Muslim legal autonomy and pluralistic secularism. The law reflects a deeper ideological project, one that displaces community memory with state-sanctioned legitimacy, erodes minority rights, and reinforces dispossession through legal ambiguity. By tracing parallels with global settler regimes and invoking divine sanction for state power, the amendment reveals the Indian state’s transformation into a postcolonial power that mimics its former colonisers.
Introduction
For a country that loves to wax poetic about religion as the foundation of its cultural and societal fabric, the Indian state, much like its colonial predecessor, has always shown an unfounded and persistent mistrust towards the ability of the Muslim community to govern their own institutions. The State’s reverence towards religion, however, is selective and dwindles at the face of scrutiny. Perhaps certain Gods are better at managing earthly property, so much so that their followers feel compelled to legislate on the governance of the allegedly incompetent ones. This intolerance, however, is not just about religious supremacy. It threatens something even more sacred to the ruling order, i.e. the moral backbone of capitalism—private property.
The Waqf (Amendment) Bill, 2024, (The Bill) which is currently under challenge before the Supreme Court, brings this mistrust into legal form. By removing recognition of Waqf by usage, tightening state control, and expanding bureaucratic discretion, the Bill fundamentally alters the parameters of Muslim religious property. This article argues that these changes do not simply modernise Waqf governance, but rather aim to change the relationship of the state with Waqf property and the people who use it.
The analysis is done in six parts. It begins with the understanding of the socio-legal idea of waqf, then turns to the new legislative changes and their rationale. It proceeds to examine how the reforms reflect settler legal logic, facilitate erasure through ambiguity and challenge India’s constitutional framework. It then concludes by positing the imperative that the Bill and the consequent disenfranchisement create, and cautions against the continuous depreciation of the constitutional fabric of the country.
Waqf and the Politics of Landed Sacredness
In a regime where capitalism and governance are deeply intertwined, the anxiety over waqf is not just about theology. It is about control over land and its profitability. This historical suspicion finds concrete expression in how Islamic charitable institutions, such as waqf, have been treated over time.
This structural unease has found concrete legal expression over time. Waqf, in its earliest conception, is not about ownership but devotion, community and continuity. Any property, once endowed as waqf, becomes inalienable. In South Asia, waqf evolved as a legal category and a social practice. However, it was never solely about paper but about faith, ritual, and community recognition.
Colonial governance marked a decisive rupture in this plural legal history. British administrators, seeking to regulate native autonomy over property based on customs and rituals, introduced waqf laws to regulate religious endowments. These legislations aimed to replace customs with codifications. This logic continued post-independence with the Waqf Act of 1954 and its later iterations, which institutionalised waqf administration under state-appointed boards. These legal frameworks occluded the sovereignty of such property by centralising authority. In doing so, they redefined waqf as a property mechanism regulated by the state
Yet, communities, especially in rural and semi-urban settings, continued to treat mosques, graveyards, and dargahs as waqf through ritual usage and social consensus, regardless of formal registration.
The story of waqf in India is thus not just legal but deeply anthropological, shaped by the meaning of belonging. Today’s reforms risk undoing this plural legal history by imposing a homogenising obligation of bureaucratic proof. These tensions culminate in contemporary legislative interventions, the most recent being the Bill, which codifies this mistrust into law.
The Bill introduces sweeping changes to how waqf properties are defined, governed, and remembered. The validity is now dependent on state recognition and bureaucratic proof. This raises a question: Does land become sacred only when the state says so? To understand the depth of this shift, we now turn to the key provisions of the Amendment and the broader implications they carry for law, memory, and minority autonomy.
In doing so, it challenges not only Muslim legal autonomy but also India’s constitutional idea of secularism based on principled distance, not paternalistic control.
Current amendments and their implications
The Bill reshapes the legal and political landscape of Muslim religious endowments in India by introducing extensive changes. A pivotal alteration is the abrogation of the doctrine of ‘waqf by user,’ previously recognised under section 3 (r) (i) of the Waqf Act of 1995. This provision recognised properties as waqf based on communal usage and religious practices, even in the absence of formal documentation.
The government has justified the amendment as a means to increase transparency, and standardise administration. They contend that the reforms aim to bring uniformity and prevent encroachments and internal mismanagement in waqf governance. However, in privileging formal documentation over lived histories, the amendment narrows the scope of recognition. Now, only properties backed by formal deeds, executed by Muslims who have practised the faith for 5 years, qualify as waqf. This shift effectively takes away the legal standing of multitudes of properties long held through customs and traditions.
Additionally, the Bill strengthens State control over Waqf Boards. Governments now dictate the composition and governance structure of the Boards by mandating the inclusion of non-Muslim members. It also eliminates the position of an expert in Muslim law from Waqf Tribunals. This move is framed as a gesture of inclusion, but in practice, it raises deep questions about the state’s trust and representational imbalance.
These are not neutral reforms. Together, they reflect a compositional shift in the relation of the State with Muslim religious institutions, wherein it no longer functions as a regulator but an arbiter of their legitimacy. This move undermines the pluralistic foundations of Indian secularism and curtails the autonomy of minority religions.
Indian secularism, as conceptualised in constitutional practice, has long operated through what is termed, notably by Bhargava as “principled distance”, where the State may engage with religious institutions, but never at the cost of their self-governance. By interfering with waqf institutions and stripping away protections like waqf-by-user, the State has overstepped the bounds of secular engagement and violated its own secular mandate..
This overreach is not merely theoretical, but is at the heart of the petitions challenging the constitutionality of the Waqf Amendment. The petitioners contend that the State cannot, in the guise of secularism, “secularise” matters of religion, a term referring to the erosion of religious vitality and autonomy. They further assert that any restriction on Articles 25 to 28 of the Constitution must be justified solely on grounds of public order, morality, or health, which are thresholds the Waqf Amendment fails to meet.
These constitutional concerns, however, do not emerge in isolation. They are symptomatic of a deeper ideological shift in how the State approaches minority religious life. This article argues that the Waqf Amendment, framed as a reform, reflects a deeper shift in India’s legal consciousness—one that troublingly mirrors the logic of settler colonialism. To fully grasp the ideological undercurrents of these legal reforms, it is essential to situate them within a broader framework, one that reveals their alignment with the logic of settler colonialism and its mechanisms of dispossession, where the state reclassifies religious life through legal control and suspicion Through the Amendment, the Indian State begins to engage with Muslims as if they are outsiders to be scrutinised. This is not only harmful; it is profoundly ironic. A postcolonial republic born in resistance to colonial techniques of erasure and control now replicates those very strategies against its own people. Seen through the lens of settler colonialism, the Amendment reveals a disturbing continuity: the legal tools once used by colonisers to marginalise and dispossess are now being redeployed by the postcolonial State itself.
Waqf and the Machinery of Settler Law
Unlike classical colonialism, which exploits and exits, settler colonialism is about permanent occupation, which seeks to replace indigenous people, erase native relationships to land, reframe ownership, and install itself as the new default. In Australia, Aboriginal land claims were denied for centuries due to theTerra Nullius doctrine, which used their lack of legal deeds against them. Unless recorded in Western legal formats, the Native American sacred lands in North America were also not recognised. Similarly, the Israeli legal system continues to devise mechanisms to systematically confiscate Palestinian land, including waqf.
It is this very settler logic that continues to be echoed in the Waqf Amendment Act. It aims to carry forward the colonial obsession with transforming living spaces into gridded, governable property. The law does not deny sacred land, it just demands it be sacred on the State’s terms. One of the clearest examples of this lies in how Waqf Boards are increasingly treated not as religious bodies entrusted with the care of sacred endowments, but as bodies solely regulatory in nature. This reclassification, although guised as a move towards empowering structured governance, is not incidental. It reflects the settler-colonial impulse to displace native modes of self-governance and replace them with state-imposed structures that are not only surveyable but ultimately subordinate to central authority. This, unfortunately, is not the first time India is witnessing this forced transformation of spiritual bodies into bureaucratic entities. The Religious Endowments Act of 1863 codified religious institutions into legal frameworks subject to colonial scrutiny. These measures transformed temples and mosques into quasi-statutory bodies that were still deeply embedded within the colonial legal grid.
The current amendment strengthens this bureaucratic grip further, like through the forceful inclusion of non-Muslim members on Waqf boards. With this, the religious nature of the body stands heavily compromised, as has also been noted by the Supreme Court. Additionally, the removal of Islamic law experts to be replaced by a current or former District Court Judge as chairman of the Waqf Tribunals sidelines theology in favour of state-centric legality. It parallels the colonial endeavour of ensuring that state-centric legality supersedes theological roots, as was also done by the British colonial administrators in sidelining qadis, in an attempt to apply so-called “Anglo-Muhammadan Law”.
Another tactic employed by colonisers historically has been the weaponisation of bureaucratic complexity. In Palestine, the indigenous people are required to produce Ottoman-era land deeds to prove ownership of their land, which is a demand impossible for many. This leads to systematic dispossession, which is unfortunately foreseeable also in post-amendment Waqf owners in India. For the poor and marginalised who lack the resources, documentation, and legal literacy to comply, the complicated registration process introduced increases the risk of alienation and dispossession of waqf land.
In its settler-colonial tones, the Waqf Amendment also reflects a capitalist one. Waqf traditionally funded schools, mosques, and hospitals, operating for communal welfare, not profit. The value of these Waqf properties lies not in marketability but in social function. The new law does little to protect this sentiment. By abolishing waqf by user, which is the doctrine that allowed long-standing public charitable use to establish itself as a waqf, the State has essentially abolished the organic, bottom-up creation of waqf, essentially dismantling the mechanism through which communities could organically designate land for spiritual and charitable use, without relying on formal documentation. This bottom-up to top-down approach reflects a shift from self-determination to bureaucratic control, where land that is not governable or documented is deemed invalid. In both settler-colonial and capitalist ways, such a redefinition of lands enables the large-scale dispossession of land, as history would tell. Having traced the ideological foundations of the amendment through a settler-colonial and capitalist lens, it is now necessary to examine the practical consequences encoded within the new provisions.
Erasure due to the ambiguity of The Law
To fully contextualise the gravity of these changes, it is crucial to consider who is most affected and what is at stake here. The Bill disproportionately impacts marginalised Muslim communities, including rural populations, urban poor, and caste- oppressed groups such as the Pasmanda. For these communities, waqf properties do not just serve a practical purpose by aiding their subsistence, but are deeply rooted in their identity.
Under the amended framework, the absence of formal deeds renders such properties vulnerable to being declared “unauthorised,” exposing them to potential demolition, privatisation, or state appropriation. In a regulatory environment where documentation is often missing due to systemic exclusion and historical oversight, the law’s silence on traditional mechanisms creates a grey zone often fatal to the rights of these communities.
This legal ambiguity exposes marginalised groups to problems, not through an overt prohibition, but a procedural oversight. When the law refuses to accept the informal yet lived reality of religious practice, it becomes an instrument of slow erasure. The result is not simply administrative, but fundamental, defining the entitlement of claim to sacred space, and who, in turn, is rendered invisible in the state’s legal imagination.
The Bill, with its echoes of settler logic, does not just deploy means to alienate property and its status on the basis of arbitrary delineations; it also redefines the very notion of divine to assimilate into its larger narrative.
Conclusion and Way Forward
In a country that claims to protect religious freedom under a secular constitution, the transformation of waqf law reveals a deeper contradiction. The Bill codifies a long-standing state mistrust toward Muslim self-governance. The amendment deploys several bureaucratic and legislative tactics to further disenfranchise the marginal Muslims and risks mass dispossession. Situated within a broader settler-colonial and capitalist framework, the state’s regulatory impulse mirrors historical patterns of domination seen in Palestine, Australia, and North America. This legal transformation fits into a larger ideological project, where divine sanction is invoked to justify state power, and secularism is redefined as paternalistic control rather than principled distance.
Addressing the structural issues exposed by the Waqf Amendment calls for a legislative rethink grounded in constitutional morality and religious autonomy. Endowment governance must be reimagined through Plural Legal Institutions, not a centralised majoritarian apparatus. India’s own legal history offers precedence for this model, one that resists the homogenising impulses of settler regimes and sustains the legal pluralism essential to a secular democracy. Crucially, the removal of waqf-by-user must be reversed. Doing so would preserve community memory and protect oral traditions that formal law often refuses to see. In order to ensure that doctrinal matters are not reduced to administrative convenience, Waqf tribunals must continue to have Islamic legal expertise. Likewise, State discretion must be checked by due process, and localised governance must be prioritised to safeguard institutional autonomy and resist homogenising state control.
Only through such an approach, one that is grounded in pluralism, decentralisation, and respect for community memory, can legislative reform be in consonance with the ethos of secularism and minority rights in India. If left unchallenged, the current trajectory risks institutionalising a future where belonging is measured not by constitutional ideals, but by compliance with a majoritarian state vision. This is the political and constitutional urgency the Waqf Amendment compels us to confront.
*Adhya Pandey and Navdha Sharma are 3rd year B.A., LL.B. (Hons.) students at MNLU Mumbai. Their academic interests lie in constitutional law, gender, minority rights and civil liberties.