Executive Overreach And Delegated Legislation: A Constitutional Analysis Of The Waqf (Amendment) Act, 2025
- IJLLR Journal
- Apr 17
- 2 min read
Kashika Goel, B.B.A. LL.B., OP Jindal Global University
I. INTRODUCTION
The constitutional legislation of delegated legislations is based on a simple distinction. Implementation of a policy can be delegated by a legislature to the executive, but not policy- making. The one is a requirement of the contemporary regulatory state; the other replaces the executive will with the legislative judgment. This boundary is violated by the Waqf Amendment Act, 2025 in three ways. As a caveat, Indian courts have a fairly weak non- delegation doctrine, which enforces wide delegations in which an intelligible principle may be identified. Even then, on that deferring standard, the Act fails.
The necessity of reforming Waqf is not a point of contention in this paper. The regime which existed prior had real shortcomings: supposed usurpation of Waqf properties, a broad declaratory authority under Section 40 and managerial wastefulness. Constitutional legitimacy, however, is not a matter of whether the end is worthwhile, but whether the methods used are within constitutional stipulated limits. The Act does not pass this test in the three aspects as discussed below.
Section 3(r) qualifies the right to devote Waqf by the donor having practised Islam of five years without specifying the term or appointing anyone to measure that term. Section 3C places a decision making power on a revenue officer to decide that property is Waqf land and make corresponding amendments to revenue records, skipping the Waqf Tribunal Parliament that was created to do so. The rule-making power of section 109 delegates too little bounded power over core governance issues. Parliament has given the destination but not the route Each of the provisions is in contravention of the rule contained in In re Delhi Laws Act, 1912 and explained in Naraindas Indurkhya v. State of Madhya Pradesh whereby Parliament must provide the governing policy before it gives authority to the executive to execute the governing policy.
