“Once a Waqf, Now a What?”: Section 40’s Removal and the Future of Waqf in India

1. Introduction

"Once a Waqf, always a Waqf." - Supreme Court of India

In Islamic theology, Waqf is a saintly religious practice where the Arabic word means "to stop" or "to confine," through which someone donates their inherited or self-acquired property to religious or charitable causes. A remarkable transition happens when physical property acquires spiritual status through dedication "fi sabilillah" (for the sake of God), therefore becoming untouchable for sale, inheritance, and confiscation. Throughout many centuries, Indian society has embedded Waqf endowments as an essential legal instrument, which shows both religious devotion and societal objectives in mosques, public water tanks, madrassas, and cemeteries. Numerous individuals argue that the Waqf (Amendment) Act 2025 has compromised the spiritual sanctity of possessions. The main issue of the new legislation is the removal of Section 40, which allowed Waqf Boards to identify and authenticate assets as Waqf through evidence such as long-standing communal usage. Deleting Section 40 from the Act has left a mark on Waqf laws despite Minority Affairs Minister Kiren Rijiju previously criticizing this provision as "the most draconian" part of the Act. The controversy arose when the Sachar Committee report discovered that India possesses over 6 lakh acres of Waqf holdings valued at around Rs 6,000 crore. 

The legal concept of perpetuity within Waqf law finds backing through judicial decisions, including the Sayyed Ali case and the highly noteworthy  Ratilal Panachand Gandhi v. State of Bombay (1954), where the Supreme Court bestowed robust support for religious autonomy in endowment management. Some organizations like Samastha Kerala Jamaithul Ulema fear that the government or private owners are quietly taking over that old religious land. This blog investigates how the 2025 amendment's Section 40 abolishment will affect the legal framework and questions whether the community has lost its heritage while limiting historical overreach.

2. Contextualizing “Waqf by User”

   
   

The doctrine "Waqf by user" functions beyond theoretical concepts because it represents the fundamental elements of collective memory within everyday religious operations. According to Indian Waqf jurisprudence, a property qualifies as Waqf by user when it receives religious or pious usage such as namaz, burial services, or communal charity practices with authorization from the authentic owner. The law acknowledges this category through lengthy, continued usage that crosses multiple generations if no formal documentation exists. Such unregistered waqfs persist deeply throughout Indian cultural and spiritual traditions because they emerge from spontaneous devotional practices in rural and semi-urban regions. Religious sites, including Mosques, cemeteries, and dargahs, find their legal standing through actual use rather than registration documents when located outside registered communal land or at remote village locations. In this instance, the user functions simultaneously as proof of sacredness and evidence. 

This idea is not only poetic. Instead, the courts also acknowledge it. The Supreme Court ruled in the Board of Muslim Wakfs, Rajasthan v. Radha Kishan (1979) that even without an explicit declaration, a property's long-standing, uncontested usage for religious purposes might establish a waqf determination. Similarly, the Court considered consistent use throughout time a sign of religious endowment in State of Rajasthan v. Sajjanlal Panjawat (1975).

The 2025 Amendment, however, has put a legal wrench in the works. The law lifted the legal rug under decades of quiet holiness by repealing Section 40, which gave Waqf Boards the authority to launch investigations and acknowledge such customary waqfs. Critics say it is a surgical attack on undocumented religious heritage, while the government may say it avoids abuse and overreach. Communities that historically had their local mosques or cemeteries protected by centuries of use risk losing those locations to lawsuits or purchase because no official deed was ever drawn up. Therefore, the concern is not hypothetical. After all, how does one record faith in a file?

3. Holy Lands, Hollow Claims: In Pursuit of Constitutional Faith

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The 2025 amendment shows its importance by removing Section 40, representing a necessary move towards constitutional rationality over enforcing theological distinctiveness and not a religious endowments assault. Under Section 40, the Waqf Board possesses an arbitrary power to identify lands as Waqf through hearsay statements, public evidence, and oral accounts without notifying owners beforehand. The authority delivered legal control for administrative actions that violated Article 300A of the Constitution, which protects property rights and conflicts with natural justice principles. 

Under the Indian Trusts Act of 1882, the general rules about trusts operated through an open system. However, waqf law through Section 85 allowed the Board to function as both judicial authority and prosecutor while escaping civil court oversight. The typical citizen who faced waqf disputes lost their property rights due to the lack of independence and standard civil court procedures in the Waqf Tribunal structure. Article 14 (Right to Equality) requires intelligible differentia and reasonable linkage to a legitimate governmental objective, which conflicts with this legal asymmetry because of religious classifications. Such systems fail to satisfy Article 14 requirements by permitting religious organizations to rule over land titles beyond established official procedures. The revised jurisprudence of Waqf becomes consistent with Article 44, establishing the Uniform Civil Code (UCC) requirement. It is common to mistake the goal of the UCC for altering only marital rights and inheritance rules. However, this law aims to establish one unified standard for all civil laws, including religious trust management systems. Until now, waqf legislation has blocked the achievement of this goal despite being outside both equity and secular legal grounds.

A secular constitutional democracy stands to face identity-based exceptionalism (fundamental structure) because of its continued use of separate Waqf regulatory systems. A judicial oversight system needs to exist because allowing religious bureaucracies to make land claims without judicial oversight leads to social unrest, along with religious community clashes and widespread institutional corruption. This is not just bad law but a systemic threat to public order under Article 19(2). The changes in the 2025 Amendment support two dominant constitutional principles because they establish standard legal equality and procedural fairness for waqf management. This provision makes religious bodies function like any other organization within defined rights systems and remedies, and obligating duties instead of dismissing faith.

4. Conclusion: A Matter of Law, Not of Faith

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Repealing Section 40 marks an important step in Indian waqf asset governance after enacting the Waqf (Amendment) Act 2025. The amendment serves to restore constitutional order instead of targeting faith despite natural fear over the potential loss of undocumented religious history. At its heart, the dispute is not theological. It is legal. The three core aspects of due process combined with property rights intersect with administrative authorities' determination of boundaries. The revoked Section 40 enabled Waqf Boards to make waqf land declarations without civil court involvement or natural justice protections through evidence based mainly on informal verbal claims and unclear historical evidence. Serious breaches under Articles 14 and 300A weakened the fundamental tenets of the rule of law. The amendment requires religious institutions to follow procedural fairness and protect third-party rights at the same level as all other organizations.

The blog considered both sides of the argument but found that the Waqf, by user, maintains cultural importance yet remains subordinate to constitutional rules. Unbridled sanctity has to give way to regulation. India will primarily preserve its status as a secular republic through equal legal treatment for all its citizens without eliminating religious beliefs. The amendment is not the end of Waqf. It is a fresh start, one based on lawfulness rather than tradition.