Can Parliament Restructure Religious Institutions Without Violating Their Autonomy?
- Abhishek Sanjay
- Apr 20
- 5 min read
Authored by Devansh Awasthi, a 3rd-year law student at Dr. Ram Manohar Lohiya National Law University (RMLNLU)
Introduction
A current Supreme Court case concerning the Waqf (Amendment) Act 2025 has received considerable attention as a clash between minority rights and government authority, but this framing is incomplete. The true issue in the case is an important constitutional question with implications for all religious groups, not just Muslims: How far can the government go in reconfiguring the entities through which religious institutions conduct their affairs before its actions constitute an artificial replacement of those entities? The Waqf (Amendment) Act 2025 is just the most recent, and in many respects most extreme, example of the government attempting to determine the limits of this interference.
Articles 25 and 26: The Constitutional Framework
The relationship between Articles 25 and 26 is complicated. Article 25 provides protection for individual freedom of conscience, including the right to share a person’s beliefs and practices with others, and the responsibility of the individual to comply with the laws of the communities in which he lives concerning order, health, and morality. Article 26 establishes the collective and institutional rights of every religious denomination to create and manage its own religious institutions (to own, purchase, and develop real property in accordance with established laws) and govern and maintain those religious institutions.
Article 26 is the more important of the two articles in connection with waqf litigation, because the dispute concerning waqf involves disputes surrounding governance and control rather than individual belief.
The decisive interpretive move in this area was made in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, where the Court distinguished between the secular and religious. A denomination’s right to administer its own affairs “in religious matters” according to Article 26(b) is a fundamental right that cannot be interfered with by the State. However, the management of property by a denomination, according to Article 26(d), is expressly subject to “law”, allowing the State the ability to regulate the secular and managerial aspects of religious endowments. This means that the constitutional authority to enact laws governing religious endowments is explicitly stated in the Constitution itself.
Regulation, not deprivation
This explains why parity with Hindu endowments as pressed for by the Union has real merit. Throughout India, temples and their revenues are governed by comprehensive statutory regimes, with State-appointed officers, authorised audits and oversight. There is no serious challenge to the constitutionality of Hindu Religious and Charitable Endowments Legislation because the Executive oversees temple administration. The legal rationale flowing from the decisions in Ratilal Panachand Gandhi and Durgah Committee, Ajmer, supports State regulation, audit, and oversight of religious endowments but prohibits the transfer of administration from the denomination to the State. Regulation can occur; expropriation of management cannot. The constitutional issue is not whether Parliament can legislate regarding waqf administration; it clearly can. The constitutional issue is whether the legislative provisions are strictly on the regulatory side of the boundary or whether they adopt the State’s judgement over the community’s.
Three pressure points
When viewed against the boundary, three elements of the Amendment are of primary importance in the legal action. First, the amendment redefines who may create a waqf. It includes a requirement that the person making the dedication must demonstrate they have been a practising Muslim for a minimum of five years. This is not an administrative regulation but a condition on the act of dedicating itself. Also, it places a responsibility on the State to certify the authenticity of a person’s faith so that the individual can make a valid dedication to a waqf. This inquiry is exactly what Article 25 intended to prevent from being the basis for State intervention, and it conflicts with the secular-administrative rationale for how the rest of the Act is structured.
The second change concerns the statutory bodies that govern the waqf system. By permitting non-Muslims to be members of the Central Waqf Council and State Waqf Boards, the Amendment effects a change in the makeup of the organisations that govern the waqf system. The petitioners assert that Article 26(b) guarantees that each denomination will govern itself through its own adherents on all matters related to its religion; thus, including non-adherents in the governing body of an organisation that makes decisions on behalf of that denomination is fundamentally different than having a non-adherent provide oversight or conduct an audit. The Union maintains that members are appointed to these boards to perform secular regulatory functions, and faith has no relation to this type of regulation.
Third, the third change pertains to executive power over the character of the property itself. The authorities in the Act give courts and other officials the power to treat disputed areas as government property until an investigation is completed. Therefore, the Act empowers the executive branch to unilaterally suspend or terminate a waqf’s status. This violates not only Article 26 but the separation of powers, allowing executive branch representatives to do what are essentially judicial functions without any oversight or accountability.
The Interim Order of 15 September 2025
The Court’s judgment of September 15, 2025, is significant for the fact that it did not match either party’s binary model of the issue. The Court did not stay the entire Act because of the presumption of constitutionality and the rarity of invalidation. On the other hand, the Court did stay the requirement that all of the waqf property must be used as a waqf for five years to qualify as one. Its reasoning was that there was no way to verify religiously valid use under the Act and that rules must be established to ensure that the Act operates fairly until those rules are in place. The Court also held that the government cannot have complete control over waqf property because it created a potential for third parties to acquire rights to waqf property before a final adjudication. The Court limited non-Muslim representatives to not more than four on the Central Council or three on each state board. The Court directed that state boards have a Muslim chairperson, who is not necessarily a board member, to ensure there is a majority among Muslims on the board.
The Court appears to indicate that structural reform of the waqf authority can be enacted by legislation. The Court believes that regulating waqf authorities through structural reform of waqf authorities is acceptable, but is unwilling to accept that the government can enforce waqf authorities by deciding who is and who is not a believer or that they can dominate the governance of waqf authorities through majority representation. The Court has applied the Shirur Mutt’s reasoning to modern laws that it has found acceptable under the principles of secular reform.
Conclusion: The Emerging Boundary
The Court has concluded that Parliament can structure and restructure religious institutions without violating the denomination's autonomy. Currently, there is no definite cutoff point at which secular reforms cease to be permissible. All of the elements of good governance may still be made available to the religious endowments. Regarding transparency in the governance of religious endowments, accountability for financial improprieties in religious endowments, enforcement of registration disciplines, and audits of religious endowments are all powers of the legislature and legitimate pursuits. The legislature has no power under the guise of legislative restructuring to determine who qualifies as a member of a religious denomination, give effective ownership of the institution to a person who is not a member of that denomination, or allow the executive branch to extinguish the religious character of a waqf property without a determination by the courts.
Ultimately, the waqf litigation matters because the judgments in the lawsuit create precedents for future waqf litigation involving similar legislative restructuring. The standard the court develops for how far the legislature can restructure religious endowments will provide a template that applies to all types of endowments in any state in this country, almost all of which are recognised by statute.
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