“Section 40 historically served as one of the Waqf Board’s most powerful legal tools — its removal marks a turning point in how India manages religious endowments.”
The Waqf Amendment Bill 2025 (UMEED Bill), recently passed by the Lok Sabha, has ignited a nationwide debate over proposed changes to the Waqf Act of 1995 — particularly the controversial move to remove Section 40. This section was a cornerstone of the Act, giving the Waqf Board the power to identify and claim properties as Waqf land, even if they were under private or institutional control.
Critics argue that stripping the Waqf Board of this authority could weaken its autonomy, expose Waqf properties to misuse, and shift key decision-making to government officials — raising concerns of potential political interference. The government, on the other hand, claims the amendment will streamline administration and reduce bureaucratic opacity.
🏛️ What is the Waqf Board and What Does it Do?
The Waqf Board is a statutory body established under the Waqf Act, 1995, tasked with overseeing and managing Waqf properties — land and assets donated by individuals for religious or charitable purposes in Islam. These may include mosques, graveyards, schools, and hospitals, among other charitable institutions.
Each state in India has its own State Waqf Board, while the Central Waqf Council supervises and coordinates at the national level.
The Board’s primary responsibilities include:
- Maintaining records of Waqf properties
- Ensuring the properties are used per donor intent
- Settling disputes and initiating legal proceedings where needed
- Preventing illegal occupation or mismanagement of Waqf assets
The Waqf Board serves as a guardian of community assets, and Section 40 historically served as one of its most powerful legal tools.
Think of the Waqf Board like a “property guardian” for Muslim religious and charitable assets. Just like a trust manages donations for a specific purpose, the Waqf Board ensures that properties donated for mosques, schools, or charities are used correctly and not grabbed by others. Section 40 was like giving this guardian “detective powers” — the ability to investigate and reclaim properties that should be Waqf but weren’t officially registered.
⚖️ Section 40 Explained: Powers to Determine Waqf Property
Section 40 of the Waqf Act granted the Waqf Board the authority to declare any property as Waqf after due inquiry. This empowered the Board to proactively investigate and assess if land or property — though not officially registered as Waqf — met the criteria for religious endowment.
Here’s why Section 40 mattered:
- It allowed the Board to initiate suo motu inquiries (on its own accord)
- It served as a mechanism to reclaim wrongly held or unrecognized Waqf land
- Its final determination could only be challenged before a Waqf Tribunal, ensuring limited political interference
With this provision, the Waqf Board had quasi-judicial powers to preserve and protect properties that could otherwise be lost to private or unauthorized control.
Section 40 = Suo Motu + Quasi-Judicial Powers: The Board could investigate on its own (suo motu), declare property as Waqf, and this decision could ONLY be challenged in Waqf Tribunal — not by any executive or administrative authority.
📋 Breakdown: Key Clauses Under Section 40
Section 40 was composed of four essential parts, each designed to secure the integrity of Waqf properties:
1️⃣ Information Gathering & Inquiry:
- The Board had the right to collect data about any property suspected to be Waqf and conduct investigations
2️⃣ Final Decision Authority:
- Once the Board made a determination, it could not be overruled by any executive or administrative authority
- Only a Waqf Tribunal could overturn the decision
3️⃣ Cross-Registered Property Review:
- If a property was under a different trust or registered society but had characteristics of Waqf, the Board could issue a notice and demand re-registration under the Waqf Act
4️⃣ Right to Adjudicate:
- Upon receiving a response, the Board could still finalize its decision — only contestable via a judicial route, not administrative channels
| Clause | Power Granted | Significance |
|---|---|---|
| Information Gathering | Collect data, conduct inquiries | Proactive identification of Waqf properties |
| Final Decision Authority | Binding declarations | No executive override possible |
| Cross-Registration Review | Challenge other trust registrations | Reclaim misregistered properties |
| Right to Adjudicate | Finalize determinations | Judicial appeal only via Tribunal |
❓ Why is the Government Removing Section 40?
The Central Government has justified the removal of Section 40 in the Waqf Amendment Bill 2025 on the grounds of improving transparency and administrative efficiency. Officials argue that:
- Section 40 concentrates too much power in the hands of the Waqf Board, allowing it to declare properties as Waqf without broader scrutiny
- It creates bureaucratic delays in property administration due to overlapping claims and time-consuming inquiry processes
- The amendment will help prevent legal ambiguities, improve property utilization, and bring more accountability to the system
According to the Ministry of Minority Affairs, the goal is not to weaken the Board but to clarify and streamline governance of religious endowment properties.
The government frames Section 40 removal as “reducing excessive power.” Critics see it as “removing essential protection.” This is a classic governance debate: When does institutional autonomy become overreach? And when does reform become interference? The answer often depends on who benefits from the status quo.
⚠️ Criticisms & Concerns: What Experts Are Saying
Despite the government’s assurances, legal experts, activists, and opposition leaders have voiced significant concerns:
🔓 Erosion of Autonomy:
- Section 40 gave the Waqf Board an independent mechanism to protect religious properties
- Its removal risks centralizing control with state machinery
⚠️ Political Misuse Risk:
- Without Section 40, determinations about Waqf property could fall to bureaucrats or land departments
- Raises fears of political manipulation or land grabs
👥 Impact on Marginalized Communities:
- Many Waqf properties support education, healthcare, and welfare programs for underprivileged Muslims
- Weakening protections could affect these services
📜 Constitutional Concerns:
- Critics cite potential infringement of Article 26 — right of religious denominations to manage their own affairs
- Several have called for judicial review of the amendment
Don’t confuse: Article 25 (individual right to religious freedom) with Article 26 (right of religious denominations to manage their own institutions). The Section 40 debate primarily invokes Article 26, as it concerns the institutional autonomy of Waqf Boards, not individual religious practice.
📊 Impact on Waqf Board’s Autonomy & Property Disputes
Removing Section 40 could dramatically shift how Waqf property disputes are identified and resolved:
| Aspect | With Section 40 | Without Section 40 |
|---|---|---|
| Authority to Declare Waqf | Waqf Board (via inquiry) | Possibly revenue/land department |
| Appeal Process | Through Waqf Tribunal | Possibly through civil courts |
| Protection from Encroachment | Proactive investigation | Reactive, dependent on litigation |
| Autonomy Level | High (quasi-judicial) | Reduced (administrative) |
| Political Interference | Limited (Tribunal route) | Higher risk (bureaucratic route) |
Legal and Political Implications:
- Increased cases in Waqf Tribunals and civil courts expected
- Potential constitutional challenges citing Article 26
- Calls for policy safeguards or alternate dispute resolution mechanisms
- Likely to feature prominently in public discourse and elections
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Section 40 gave Waqf Boards the power to investigate and declare properties as Waqf through suo motu inquiries. This quasi-judicial power is now removed.
Article 26 protects the right of religious denominations to manage their own affairs and institutions — directly relevant to Waqf Board autonomy.
Under Section 40, Waqf Board decisions could ONLY be challenged in the Waqf Tribunal — no executive or administrative override was possible.
Section 40 had four key parts: Information Gathering, Final Decision Authority, Cross-Registered Property Review, and Right to Adjudicate.
The government claims Section 40 concentrates too much power in Waqf Boards, causes delays, and creates legal ambiguities.
