The Waqf Act is unconstitutional as it violates Articles 25 and 26 of the Constitution. At the same time, the Uniform Civil Code also threatens to override these fundamental rights
Aazeen F Kirmani | Clarion India
AS this article is being written, action under the new Waqf Amendment Act has already begun. Properties long considered legal are now being labelled illegal, not because they are actually illegal, but because, under the new law, it has become impossible to prove their legality.
Note that Waqf properties fund educational institutions, such as girls’ schools, madrasas, and colleges. Some endowments are specifically created for the education of Muslim girls, providing scholarships, hostel facilities, and other support. Several Waqf boards have established women’s colleges or offer financial aid for professional and religious education.
Orphanages, women’s shelters, and care homes for widows have been built on Waqf land in parts of the country. Some old-age homes for destitute women also depend on Waqf institutions. Other endowments assist with the marriage expenses of poor girls, including dowry or gifts. This is particularly visible in South India and parts of Maharashtra.
It is difficult to estimate the number of Muslim women who will be adversely affected by the actions taken under the new Waqf law. And that’s not the only harm the new law is causing Muslim women.
An often-overlooked contribution of the madrasas — often the only refuge for poor and orphaned Muslim boys and girls — is that they help keep vulnerable youth away from crime and substance abuse. These institutions provide not just religious instruction but also basic education, food, and lodging. With the number of madrasas shrinking due to the new Waqf law, thousands of Muslims will be left unanchored.
Ironically, the first victims of this growing instability will be the women of the community — mothers, sisters, wives — as the fallout of unemployable, uneducated youth ripples outward.
Isn’t it ironic then that the government that is pushing the Uniform Civil Code (UCC) on the pretext of empowering Muslim women is at the same time snatching away educational and development opportunities from them — and potentially creating an unemployment and addiction crisis in the community?
Constitutional Violations and Discriminatory Provisions
The UCC is presented as a progressive reform to unify civil laws across religious communities, aiming to ensure equality and gender justice. But the recently passed Waqf Act runs counter to these very ideals.
It singles out Muslim endowments for reform, leaving similar institutions from other religions untouched — such as Hindu temple trusts, Christian dioceses, and Sikh gurdwara boards. This selective approach undermines both the secular ethos and the promise of uniformity.
The Act mandates the inclusion of at least two non-Muslim members on the Central Waqf Council and State Waqf Boards, introducing the possibility of non-Muslim majorities in these religious bodies. This is not just unconstitutional, but also selective. No other religious endowment body in India has members from outside the faith it represents.
If the true goal is a uniform and secular civil code as proposed in the UCC, all religious endowments — Waqf, Hindu, Christian, and others — should be regulated under a common legal framework, not through discriminatory exceptionalism.
Directive Principles of State Policy vs. Fundamental Rights
The concept of the UCC is part of the Directive Principles of State Policy (DPSP), the aim of which is to ensure social justice, economic welfare, and a just society through state governance. However, DPSPs are non-enforceable guidelines in the Indian Constitution. They reflect the aspiration of the framers of the Constitution for legal uniformity in personal laws (like marriage, divorce, inheritance, adoption) across religions.
On the other hand, Article 26 entails the freedom to manage religious affairs. According to this article, every religion has the right to:
- Establish and maintain institutions for religious and charitable purposes
- Manage its own affairs in matters of religion
- Own and acquire movable and immovable property
- Administer such property in accordance with law
The new Waqf law is an open violation of the rights guaranteed in Article 26.
Selective Efficiency and Questionable Intentions
While the non-enforceable UCC is being aggressively pushed, the constitutionally guaranteed rights under Article 26 — protecting religious autonomy — are quietly being eroded.
When a government fast-tracks a non-enforceable directive while undermining enforceable rights, it raises serious questions — not just about priorities, but about intentions.
Is the State truly pursuing justice and equality for all, as it claims? Or is it selectively applying constitutional tools to centralise control and further marginalise the already marginalised Muslim community?
It signals efficiency in pushing an agenda, but a worrying inefficiency — or unwillingness — when it comes to protecting the pluralism that the Constitution promises.
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Aazeen F Kirmani is a Hyderabad-based writer.
