BRIDGING THE DIVIDE: RELIGIOUS ARBITRATION AND WAQF PROPERTY DISPUTES IN MODERN INDIA

-Swastika Saha Chowdhury and Amiya Sachdeva

Introduction

In a country as diverse as India, the confluence of law, religion and property tends to create complicated legal issues and disputed spaces. One such area is the adjudication of disputes concerning Waqf properties—charitable endowments under Islamic law—where secular legal frameworks and religious traditions tend to conflict. At the centre of this debate lies an emerging yet under-examined question: Can religious arbitration be a workable means for settling Waqf property disputes in a way that respects constitutional values and rule of law?

As an increasing number of land disputes centring on Waqf property arise, with Waqf Boards being at the centre of allegations of mismanagement and concerns over the insufficiency of traditional litigation to handle community-related subtleties, alternative dispute resolution (ADR)—particularly via religious arbitration—has attracted growing interest. In this blog, an attempt has been made to delve into theoretical and practical outlines of religious arbitration in India, evaluate its convergence with contemporary legal paradigms and examine its ability to deliver fair, expeditious and culturally nuanced adjudications in cases of Waqf property conflicts. By exploring comparative global practice and critically evaluating India's current legal and institutional systems, this blog aims to make an informed assessment of how religious arbitration can bridge or exacerbate social, legal and religious divides in modern Indian society.

Religious Arbitration in India

In India, religious arbitration finds a unique and typically contentious place within the overall framework of personal laws and customary practices. Though not officially acknowledged by statutory legislation, it is, however, pervasively practised in communities throughout the country. Non-state religious institutions like Dar-ul-Qazas (Islamic Sharia courts), Christian ecclesiastical courts and Hindu caste-based panchayats have long been resolving marriage, divorce, inheritance and property-related disputes. Such forums are frequently preferred for their availability, speed and cultural appropriateness, particularly among rural and marginalized populations.

However, the issue of legal enforceability and validity of such orders has been addressed by the Indian judiciary. In the landmark case of Vishwa Lochan Madan v. Union of India, the Supreme Court made it clear that Sharia courts and other religious forums have no legal or constitutional power to enforce orders as binding judgments. Such bodies can act as mediators, but only subject to the explicit approval of all concerned parties. The Court reiterated that India does not allow any parallel legal system and that any religious arbitration shall function within the ambit of the Constitution, specifically relating to the rights of individuals and equality before the law. Despite these judicial safeguards, concerns remain.

Religious arbitration in its present unregulated state is usually not procedurally transparent and lacks accountability. Women and vulnerable individuals are especially at risk, as patriarchal norms and community pressures can lead to unequal outcomes. There are also problems of coercion, absence of legal literacy and no apparent mechanism for appeal. this creates a legal grey area where informal resolutions may be expedient but risk violating constitutional principles. Therefore, while religious arbitration can be a culturally appropriate remedy to overburdened courts, regulatory frameworks are needed to ensure constitutional morality without disempowering community autonomy.

Religious Arbitration: A Global Perspective

Religious arbitration is a prevalent feature across most democratic states, whereby governments attempt to balance religious freedom without sacrificing constitutional values. The experiences of the United Kingdom, the United States and Canada offer different models of how religious tribunals can function within or parallel to formal legal systems. These models demonstrate different attitudes towards multiculturalism, gender equality and state intervention.

In the United Kingdom, religious arbitration is permitted through the Arbitration Act 1996, where private settlement of disputes is permitted—including through religious tribunals—provided the process is consensual, follows natural justice and aligns with public policy. Sharia councils, for example, are dominant among Muslims and commonly decide on issues like divorce, inheritance, and custody. Nevertheless, there have been reports raising alarm about the lack of transparency, gender discrimination and the establishment of parallel legal systems. The UK Home Affairs Select Committee warned in its 2016 report that women were being coerced to use these religious forums, being ignorant of their rights under civil law or without access to justice through community custom. The work of researchers such as Samia Bano has gone further to indicate that such tribunals oftentimes do not have procedural protection and accountability arrangements. The observations have strengthened demands for enhanced state regulation so that there may be compliance with both UK constitutional principles and European human rights provisions.

On the other hand, in the United States, religious arbitration is governed by the Federal Arbitration Act of 1925, and enjoys wide recognition. Religious tribunals such as the Jewish Beth Din, Christian conciliation panels and the Islamic courts are authorized to arbitrate disputes, particularly in cases involving personal or community concerns. These tribunals are legally enforceable if the parties voluntarily consent and the process does not contradict public policy. Courts routinely enforce religious arbitration awards unless due process is absent or coercion has been used. For instance, in Encore Productions v. Promise Keepers, a religious arbitration clause was deemed enforceable. Law scholars such as Michael Helfand contend that although this model highly safeguards religious liberty, it may also result in the existence of constitutional blind spots if the courts are excessively deferential towards religious norms while disregarding the rights of the individuals.

Canada, however, represents a more interventionist approach. In Ontario, religious arbitration was a public issue in the early 2000s following proposals to permit Islamic tribunals to adjudicate family law matters. Though the Boyd Report (2004) suggested a regulated framework to incorporate faith-based arbitration, vigorous public resistance resulted in the Family Statute Law Amendment Act (2006), which prohibited all religious arbitration under family law. The government of Ontario emphasised that multiculturalism cannot be permitted to supersede gender equality and standardized legal protocols. As such, all arbitration relating to families is now required to strictly adhere to provincial legislation, irrespective of religious belief.

Contrary to these Western models, religious conflicts in most Islamic nations are settled within institutionalized Sharia court systems that utilize Islamic jurisprudence based on the Qur'an, Hadith and traditional legal schools. Saudi Arabia, Egypt and Malaysia all have Sharia courts as part of their judicial systems, particularly for matters of personal status like marriage, divorce and inheritance. These religious tribunals typically operate in tandem with or inside state institutions, to a varying extent codified and regulated. Significantly, the administration and adjudication of waqf (Islamic charitable trusts) are inextricably part of these religious legal frameworks. Disputes relating to waqf—usage, administration or trusteeship of endowed assets—are generally determined by Sharia courts or religious boards, highlighting the close nexus between Islamic arbitration forums and the regulation of religious trusts.

This deep-rooted connection between religious legal institutions and waqf administration in Islamic nations offers a significant frame of reference with which to approach the Indian case. India is a constitutionally secular country and its legal framework is technically severed from religion, yet administration of waqf properties, having originated from Islamic religious practice, continues to be strongly interlinked with religious identity as well as community control. It is against this background that the history and development of waqf regulation in India must be understood.

Waqf Property and Amendment: Disputes and Challenges

The concept of waqf which arrived with the advent of Islam, refers to the permanent dedication of movable or immovable property for the purposes enshrined in Islam as pious, religious or charitable. In India, a wide array of properties fall under waqf, which include mosques, idgahs, dargahs, khanqahs, imambaras, and qabristans (graveyards), among others.

Waqf properties have been regulated by various legislations which date back to pre-independence. The first legislation to manage waqf properties came in the year 1913 in the form of the Mussalman Wakf Validating Act, 1913 followed by the Mussalman Wakf Act, 1923 and The Mussalman Wakf Validating Act, 1930.

It was in 1953 after India’s independence that an Act came into existence to strengthen waqf property managements, which was the Wakf Act, 1954. This Act was also responsible for creating the State Waqf Boards and established the Central Waqf Council of India in 1964 to supervise State Waqf Board and provided a pathway toward the centralization of Waqfs. This act was later amended four times before it was repealed and replaced by the Waqf Act, 1995. This new legislation was responsible for the creation of Waqf Tribunals, which were special courts whose powers were similar to that of civil courts, as per Section 83(5). However, the decisions of these tribunals were binding and could not be challenged in civil courts. This act was further amended in 2013. The most recent change was introduced through The Waqf (Amendment) Act, 2025, which came into force on 8th April 2025 (hereinafter referred to as the ’Amendment’). This legislation aimed to streamline the process of administration of waqf properties and increase judicial oversight.

The Act and the latest Amendment however, has the potential of giving rise to challenges and continued unresolved disputes regarding management of waqf properties. The Amendment modified the finality of the decisions of the tribunals by allowing appeals to the high courts within 90 days. However, consistent prolonged litigations regarding waqf properties with thousands of pending cases are common in the country. For example, in Tamil Nadu, a farmer in Thiruchenthurai village was unable to sell his land due to Waqf Board claims over the entire village. Similar disputes have emerged in Bihar, Kerala, Karnataka, and Uttar Pradesh, affecting thousands of families.

Data compiled by the Ministry of Minority Affairs shows that of the total 8.8 lakh Waqf assets spread out across 30 states and Union Territories, more than 73,000 are under dispute. The Ministry has analysed functioning of Tribunals and found that there are 40,951 cases lying pending in Tribunals out of which 9942 cases filed by the Muslims community against the Institutions managing waqf. Moreover, there is inordinate delay in disposal of cases and no provision for judicial oversight provided on tribunal decisions. This highlights a systemic challenge in the effective adjudication of Waqf property disputes, underscoring the urgent need for procedural reforms, greater transparency and judicial oversight to restore trust in the dispute resolution mechanism.

The Amendment has further removed Section 83 (4) (c) of the Act which mandated the presence of an expert of Muslim law and jurisprudence in the Tribunals. However, the Amendment has replaced a Muslim law expert with a current or former District Court judge as chairman and current or former joint secretary to the state government. This further raises the potential of the Muslim law not always being correctly interpreted with the absence of an expert from the Tribunal now. In other laws, such as the Companies Act, 2013 and Electricity Act, 2003, the appellate Tribunals are required to have technical experts in addition to judicial members. The exclusion of Muslim law experts from Waqf Tribunals thus risks undermining the cultural and legal sensitivity required for just adjudication, making a strong case for reinstating domain-specific expertise to ensure informed and contextually appropriate decisions.

Path Forward with Religious Arbitration

With the high pendency rate in Waqf Tribunals and the removal of a Muslim law expert from the same potentially will lead to challenges which calls for a way forward to resolve waqf disputes more efficiently.

The first step towards reform could be the inclusion of an ‘Arbitration Mandatory’ Clause in the Waqfnamah or the deed of Waqf creation. Religious arbitration, at its core, is characterized by two features: (1) decisions are rendered by religious authorities who, (2) adjudicate disputes in accordance with religious laws, rules and values. In this context, valuable insights can be drawn from comparative jurisdictions such as Indonesia, where Waqf disputes are resolved through a structured, multi-tiered approach - beginning with deliberation aimed at consensus, followed by mediation, arbitration and, only as a last resort, litigation.

This principle can be followed for resolving waqf disputes in India. An arbitration clause can be made mandatory for parties before approaching the waqf tribunals. This will ensure that the parties have a chance to amicably settle their dispute. Arbitration also gives parties the power to choose at least one of the arbitrators who is an expert in Muslim law. The independence to choose arbitrator(s) of their choice is governed by Section 11 of the Arbitration and Conciliation Act, 1996. This increases the potential of a more efficient resolving of the matter following the principles of the Muslim law. If the arbitration proceedings fail, the parties can approach the tribunals and then later appeal to the High Court as and when the need arises.

This leads to the second step which can be the formalisation of informal institutions such as the dar-ul qazas. In India, dar ul qazas practice an Islamic law that is decentralized and largely uncodified. The Supreme Court in the case of Vishwa Lochan Madan v Union of India held that darul-qaza or shariya courts have no legal standing and their decisions are not binding, though they were recognised as an alternative dispute resolution path for Muslims. However, as their authority rests on the qazi's (judge) religious legal credentials, and because all parties agree at the outset to abide by the qazi's decision, they can function as binding. Institutions, such as dar-ul qazas which essentially serve as arbitration and mediation centres can be formalised to make their judgements binding on the parties.

The procedures for formalised arbitration proceedings by such institutions need to be laid down in a manner that serve as a safeguard to the vulnerable groups such as the women and backward classes. For this, a bench of three arbitrators may be chosen by the parties- the Qazi and two members from the judiciary. This will ensure that a speedy and efficient proceeding is carried out with minimal financial assistance from the parties.

Conclusion

The Waqf (Amendment) Act, 2025, in trying to enhance judicial supervision, has inadvertently contributed to new issues of effective and culturally appropriate resolution of waqf property disputes—particularly with the exclusion of Muslim law specialists from tribunals. Religious arbitration thus appears, not as an alternate legal system but as a secondary, community-based alternative that accommodates both constitutional protection and the distinctive jurisprudence of Muslim personal law.

The proposed inclusion of a mandatory arbitration clause in the waqf deed has the potential to decongest tribunals by enabling consensual, faith-sensitive pre-litigation resolution. Further, drawing from Indonesia's tiered dispute resolution model and the recognition of dar-ul qazas as informal forums, India can move towards formalising such institutions within the ambit of the Arbitration and Conciliation Act, 1996. Incorporating judicial oversight into these panels—such as through mixed benches of qazis and retired judges—can offer both procedural fairness and religious authenticity. These suggestions, if implemented with proper safeguards against coercion and gender bias, could not only reduce pendency and improve access to justice, but also restore community trust in the dispute resolution process. In doing so, religious arbitration would cease to be a contested idea and instead become a structured, inclusive mechanism that bridges the divide between tradition and modern constitutionalism.