Published On: May 24, 2026
Authored By: Anmol G V
Sastra Deemed University
Introduction
The Waqf (Amendment) Act, 2025, also known as the UMEED Act, vests in the District Collector the power to determine whether a disputed property is Waqf or government land, a power that once rested with the Waqf Board. This transfer of power is just one more in a legal tradition that stretches back over a century. This article argues that Indian jurisprudence has, across four distinct phases, circumscribed, absorbed, or rendered meaningless the Islamic adjudicatory institutions that governed significant areas of Muslim legal life, moving authority from community-focused religious entities to state machinery. The tools of this displacement have been consistent: the Essential Religious Practices (ERP) doctrine, which courts use to distinguish protected religious practice from regulable ‘secular activity’, and the qualification in Article 26(d) of the Constitution, which guarantees religious denominations the right to administer their own property only ‘in accordance with law.’ This article traces that process through four institutions: the Qazi court, the Dar-ul-Qaza, the Muslim personal law framework, and the Waqf Tribunal, and places the UMEED Act within a historical legislative pattern rather than treating it as an aberration.
I. The Constitutional Framework
The constitutional framework governing religious institutional autonomy rests primarily on Articles 25 and 26. Article 25(1) guarantees every person the freedom to profess, practise, and propagate religion.[1] However, Article 25(2)(a) permits the State to regulate ‘any economic, financial, political or other secular activity which may be associated with religious practice’, a clause that has served as the primary legislative gateway for the interventions examined in this article.[2] Article 26(b) protects a religious denomination’s right to manage its own affairs in matters of religion, while Article 26(d) protects its right to administer property ‘in accordance with law’, a phrase that subordinates administrative autonomy to parliamentary legislation in a way that Article 26(b) does not.[3] Article 30(1), separately, protects the right of religious and linguistic minorities to establish and administer educational institutions, a provision distinct in scope and beneficiary from Article 26.[4]
The judicial tool that brings these articles to bear is the Essential Religious Practices (ERP) doctrine, first articulated in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954).[5] The Court held that the Constitution protects only those practices that are essential to a religion, not all practices associated with it. Most importantly, the determination of what is essential is made by the court, not by the religious community itself. This has a structural consequence: the boundary between protected religious practice and regulable secular activity is wherever the court draws it, making Islamic institutional autonomy contingent on judicial discretion rather than community decision.
II. The Qazi System and the Kazis Act, 1880: The Template for Displacement
The earliest and most complete example of formal institutional displacement is the reduction of the Qazi. Under pre-colonial Islamic governance, the Qazi was a judicial officer deriving legitimacy from fiqh and administering civil disputes, certifying transactions, and adjudicating personal status matters according to Islamic law. This authority was not a courtesy of the state; it preceded colonialism entirely.[6]
The British dismantled it in two steps. First, Act No. XI of 1864 abolished the system of government-appointed Kazis altogether, removing them from the judicial system on the ground that British courts had replaced traditional adjudicatory systems.[7] Then, after pressure from Muslim communities who wished to retain the office for community functions, the Kazis Act of 1880 was enacted, restoring the position of Kazi but stripping it of the adjudicatory function it had once held.[8]
Section 4 of the Kazis Act, 1880 states that nothing in the Act shall be construed to confer any ‘judicial or administrative powers’ on a Kazi, that a Kazi’s presence is not mandatory at any marriage or ceremony, and that nothing prevents any person from performing the functions of a Kazi regardless of formal appointment.[9] In a single provision, the form, title, and ceremonial role were preserved while the legal function was extinguished entirely. The State retained control over appointment, suspension, and removal of Kazis, making even the residual office subject to government discretion.[10] This pattern, preservation of form, extinguishing of authority, and control over appointment, recurs across every subsequent intervention examined in this article.
III. Codification as Control
Prior to 1937, Muslim personal law was applied in civil courts with significant regional variation; customary law frequently overrode Shariat, and ulema retained meaningful interpretive authority because no single authoritative code existed for courts to follow. The Muslim Personal Law (Shariat) Application Act, 1937 changed this by mandating the application of Shariat across marriage, divorce, inheritance, and maintenance in civil courts.[11]
This had a contradictory institutional effect. On one hand, it strengthened Shariat against customary erosion. On the other, it routed Islamic personal law through civil courts and fixed its content through legislation, removing the interpretive role of religious scholars entirely. The ulema lost their adjudicatory position; a frozen statutory reading of Shariat, subject to civil court interpretation, replaced the living jurisprudence.
The subsequent institutional fragility of Islamic personal law is most clearly seen in the Shah Bano sequence. In Mohd. Ahmed Khan v. Shah Bano Begum (1985),[12] a five-judge Constitution Bench applied Section 125 of the Code of Criminal Procedure, a secular maintenance provision, to a divorced Muslim woman, holding that iddat payment was not a sufficient discharge of the maintenance obligation. The decision directly displaced the All India Muslim Personal Law Board’s (AIMPLB) authoritative position on Islamic divorce law. Parliament responded with the Muslim Women (Protection of Rights on Divorce) Act, 1986,[13] reversing the outcome under political pressure and restoring the AIMPLB’s reading of Shariat. This legislative retreat was then neutralised by the Supreme Court in Danial Latifi v. Union of India (2001),[14] which reinterpreted the 1986 Act through the lens of Article 21 to hold that a divorced Muslim woman’s right to maintenance extended beyond the iddat period. The original Shah Bano outcome was thereby restored through constitutional interpretation of the very Act designed to undo it.
The Shah Bano sequence demonstrates that Islamic personal law autonomy in India is politically contingent. The State retreats when the religious establishment is electorally useful and advances when it is not. In both directions, Parliament and the courts are the ultimate arbiters, the AIMPLB’s authority exists only as long as the State tolerates it.
IV. Informal Adjudication and Its Judicial Ceiling
The AIMPLB’s Nizam-e-Qaza, formalised in 1993, represented an attempt to reconstruct Islamic adjudicatory capacity outside state systems, through a network of Dar-ul-Qazas, Islamic dispute forums staffed by trained qazis and operating on party consent. Their jurisdiction was primarily matrimonial. Because they sought no formal legal recognition, they were designed to be unreachable by the displacement mechanisms previously applied to the Kazis system and the Shariat framework.
The Supreme Court addressed these institutions directly in Vishwa Lochan Madan v. Union of India (2014).[15] The Court declined to ban Dar-ul-Qazas, accepting the AIMPLB’s characterisation of them as consensual ADR mechanisms. However, it drew a firm ceiling: Dar-ul-Qaza rulings are not judicial pronouncements, carry no legal enforceability, and any fatwa that ‘interferes with or contradicts individual rights granted by the Constitution’ must be ignored.[16] A Dar-ul-Qaza may facilitate a settlement freely accepted by parties, but it may not compel, coerce, or issue orders.
This ceiling was lowered further by the Supreme Court in Shahjahan v. State of Uttar Pradesh.[17] The bench held that ‘Sharia courts, and similar bodies “by whatever name labelled, including Court of Kazi or Court of Darul Kaza” have no recognition in law’, and that any declaration issued by such bodies ‘is not binding on anyone and is unenforceable by resort to any coercive measure.’[18] Critically, the Court left social coercive pressures, community pressure, ostracism, and the practical consequences of a community refusing to deal with a member who defies a fatwa, entirely unregulated. The Dar-ul-Qaza cannot become a court, but it retains its community-based influence intact. Once again, the form survives while the legal function is permanently foreclosed.
V. Current Displacement
The Waqf Act, 1995 represented a high point of Islamic institutional legal authority in post-independence India. Section 83 established Waqf Tribunals as exclusive forums for all disputes relating to Waqf properties.[19] Section 85 barred civil court jurisdiction over all matters triable by the Tribunal, a hard exclusivity clause ousting all parallel jurisdiction, unusual even among specialist tribunals.[20] A dedicated Survey Commissioner, with specialist Waqf knowledge, conducted property surveys. No general revenue officer had authority over Waqf determinations. The Tribunal system gave the Waqf institution a degree of legal autonomy that no other Islamic adjudicatory body had retained post-independence.
This autonomy began eroding through judicial interpretation before any legislation was passed. In Habib Alladin & Ors. v. Mohammed Ahmed,[21] the Supreme Court held that the Waqf Tribunal’s jurisdiction under Sections 6 and 7 of the Waqf Act, 1995 extends only to properties already included in the official list of auqaf or registered under Chapter V of the Act. Whether an unregistered or unnotified property is Waqf at all, a fundamental threshold question, cannot be determined by the Tribunal; that question falls to civil courts or revenue officers.[22] The Tribunal’s exclusivity clause was accordingly narrowed: it ousts civil court jurisdiction only after Waqf status has been formally established, not in the process of establishing that status.
The Waqf (Amendment) Act, 2025 then effected the legislative component of the same displacement. It replaced the Survey Commissioner with the District Collector as the authority conducting Waqf surveys.[23] Section 3C of the Amendment provides that where the Collector determines a disputed property is government land, the Waqf Board is obligated to strike it from its records, with the Collector’s determination carrying administrative finality.[24] The Amendment further abolished waqf-by-user, the recognition of Waqf status through established communal practice without formal documentation, eliminating a protection designed for properties whose historical records are incomplete.[25] Non-Muslim representation was introduced on Waqf Boards, challenged by petitioners as a violation of Article 26(b).[26] The Limitation Act was applied to Waqf disputes, subjecting them to general civil limitation periods inconsistent with the traditionally inalienable character of Waqf property under Islamic law.[27]
The Supreme Court’s partial stay of key provisions, including the Collector’s power to denotify Waqf properties and the non-Muslim representation requirement, signals that these provisions raise prima facie constitutional questions.[28] The stay preserves the Tribunal structure pending final adjudication, but it does not reverse the structural pattern.
VI. Article 30 and Institutional Character
A parallel study in the regulation of Muslim institutional autonomy concerns educational institutions under Article 30(1), which guarantees minorities the right to establish and administer their own educational institutions. In S. Azeez Basha v. Union of India (1968),[29] the Supreme Court held that Aligarh Muslim University could not claim Article 30(1) protection because it had been established by Parliament, not by the Muslim community. The instrument of legal incorporation determined minority character, not the community’s intent. This created a structural trap: an Islamic institution that sought legal personality through parliamentary incorporation forfeited the constitutional protection that legal personality was meant to secure.
In Aligarh Muslim University v. Naresh Agarwal (2024 INSC 856), a seven-judge Constitution Bench overruled Azeez Basha by a 4:3 majority, holding that statutory incorporation does not extinguish minority character if community initiative can be established.[30] The oscillation between these two positions over fifty-six years illustrates that the constitutional protection available to Islamic institutions is not stable; it is the product of a bare majority on a changing bench.
Conclusion
Across each institution examined, the Qazi court, the Dar-ul-Qaza, the Muslim personal law framework, and the Waqf Tribunal, the same structural outcome emerges: the form of the institution is preserved while its legal authority is extinguished or transferred. The Kazis Act preserved the office of Kazi while removing all adjudicatory power through Section 4. Vishwa Lochan Madan preserved the Dar-ul-Qaza while permanently foreclosing its evolution into a court. The 1937 Shariat Act preserved Islamic personal law while routing it through secular courts subject to constitutional override. The UMEED Act preserves the Waqf Board while transferring its most significant power, determining what is and is not Waqf, to the District Collector.
The legal mechanism enabling this pattern is the interaction between the ERP doctrine and Article 26(d)’s ‘in accordance with law’ qualification. Together, they give Parliament near-unlimited power to regulate the institutional architecture of religious communities, provided some spiritual or ceremonial residue is left untouched. The unresolved constitutional question now before the Supreme Court in the UMEED Act challenge is whether Article 26(d) contains a floor below which state regulation ceases to be regulation and becomes the absorption of a religious institution into the state machinery. The resolution of that question will determine not merely the fate of Waqf governance, but the constitutional viability of community-based religious adjudicatory institutions in India.
References
[1] The Constitution of India, Article 25(1).
[2] The Constitution of India, Article 25(2)(a).
[3] The Constitution of India, Articles 26(b) and 26(d).
[4] The Constitution of India, Article 30(1).
[5] Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.
[6] Sagufta Parveen, ‘Role of Qazi in Medieval India’, (2013) 3 313–316.
[7] Act No. 11 of 1864 (British India), repealing the system of government-appointed Kazis.
[8] The Kazis Act, 1880 (Act No. 12 of 1880).
[9] The Kazis Act, 1880, Section 4.
[10] The Kazis Act, 1880, Section 2.
[11] The Muslim Personal Law (Shariat) Application Act, 1937 (Act No. 26 of 1937).
[12] Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945; (1985) 2 SCC 556.
[13] Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986).
[14] Danial Latifi v. Union of India, (2001) 7 SCC 740.
[15] Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707.
[16] Ibid., para 38.
[17] Shahjahan v. State of Uttar Pradesh, 2025 INSC 528 (Justices Sudhanshu Dhulia and Ahsanuddin Amanullah).
[18] Ibid., para 12.
[19] The Waqf Act, 1995 (Act No. 43 of 1995), Section 83.
[20] The Waqf Act, 1995, Section 85.
[21] Habib Alladin & Ors. v. Mohammed Ahmed, 2026 INSC 90 (Justices Sanjay Kumar and K. Vinod Chandran, January 28, 2026).
[22] Ibid., interpreting Sections 6(1) and 7(1) of the Waqf Act, 1995.
[23] Waqf (Amendment) Act, 2025.
[24] Waqf (Amendment) Act, 2025, Section 3C.
[25] Waqf (Amendment) Act, 2025 (abolition of waqf-by-user).
[26] The Constitution of India, Article 26(b).
[27] The Limitation Act, 1963 (as applied to Waqf disputes by the Amendment).
[28] In re: Waqf (Amendment) Act, 2025, Supreme Court of India (interim stay, 2025).
[29] S. Azeez Basha v. Union of India, AIR 1968 SC 662.
[30] Aligarh Muslim University v. Naresh Agarwal, 2024 INSC 856 (Seven-judge Constitution Bench, November 8, 2024).
