With the assent President of India, Smt. Droupadi Murmu, the Waqf (Amendment) Act, 2025 has now entered the statute books. Among its most consequential provisions is the repeal of Section 40 of the Waqf Act, 1995-a move that is not merely legislative but profoundly constitutional and civilizational in its import.
For too long, this provision had weaponised presumptive religious claims over property, often at the expense of the common citizen’s right to fair hearing, due process, and equal protection under law. In a republic governed by the rule of law, such an arbitrary and opaque mechanism had no place.
Section 40: A Legal Anomaly Cloaked in Religious Sanctity
Section 40 permitted a Waqf Board to unilaterally “determine” that any property-private or public-was Waqf, simply on the basis of its own “reason to believe.” There was no requirement for documentary proof, no necessity of ownership records, and no mandatory judicial oversight at the stage of such declaration.
Once such a declaration was made, the burden to disprove fell entirely upon the occupant, regardless of their tenure, possession, or even prior official records in their favor. This was not due process-it was presumptive confiscation cloaked in faith.
The provision violated not only Article 14 (Equality before Law) and Article 300A (Right to Property), but also the bedrock principles of natural justice enshrined in common law and codified in our Civil Procedure Code (CPC).
Contradictions with the CPC and Established Legal Norms
In any civil dispute over title or possession, the burden of proof lies with the claimant. Section 9 of the CPC ensures access to the courts; Orders V, VI, and XIV ensure due notice, framing of issues, and the right to lead evidence. These rights are fundamental to a fair trial and are universal across litigants-except, it seems, where Section 40 had cast its shadow.
In Waqf matters, the Board could act as claimant, investigator, adjudicator, and enforcer-a complete collapse of the constitutional doctrine of separation of powers.
The Munambam Case: When 600 Families Faced the Edge of the Law
The real-world consequences of this provision came to light in Munambam, Kerala, where over 600 families who purchased land in the 1960s from a registered trust found themselves declared “encroachers” in 2019. Their land was retrospectively claimed as Waqf-not via a civil suit, but through a unilateral administrative action by the Board.
The 2025 Amendment addresses this miscarriage by inserting Section 2A, which protects statutorily regulated trusts, like Farook College, from the purview of the Act-irrespective of any past or future Waqf Tribunal orders. This ensures that institutions operating under other legal frameworks are not exposed to retrospective Waqf claims.
Religious Freedom vs. Legal Absolutism
Critics have argued that the amendment curtails religious freedom under Article 25, but that assertion is legally unsound. Religious freedom does not include the right to unilaterally claim and control immovable property, particularly when such claims are untested by civil courts.
Faith does not confer title. A spiritual claim cannot override constitutional guarantees. Justice must be based on evidence, not emotion; on proof, not proclamation.
Law is for the People, Not for the Plunderers of the Past
India’s legal system is not derived from the firmans of invaders, but from the will of the people expressed through a democratic Constitution. The repeal of Section 40 is a symbolic and substantive rejection of the idea that land can be declared Waqf through clerical fiat-a relic of theocratic jurisprudence best left in history’s dustbin.
As a nation, we must remember that the law serves the citizen, not the institution-and certainly not one whose legal privileges echo the legacy of foreign conquest and religious exclusivity.
A Return to Constitutional Dharma
The Waqf (Amendment) Act, 2025 is not an assault on religion-it is a restoration of balance, a reaffirmation of constitutional values, and a reminder that no religious authority is above the law.
Justice, Not Jihad is not just a slogan-it is a jurisprudential necessity. Section 40, in its essence, empowered clerical overreach over civil rights. Its repeal is not merely a legal correction, but a moral imperative, a return to India’s legal dharma, and a tribute to a Republic built not on conquest, but on justice.
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