Introduction
On 15 September 2025, the Supreme Court in In Re: The Waqf Amendment Act, 2025 (1) upheld most of the 2025 Amendment while partially staying certain provisions. Restrictions on waqfs, abolition of waqf by user, government expropriation, and regulatory changes were largely validated. While the judgement’s broader profile has already been discussed (see here), one strand warrants closer scrutiny — i.e. the exclusion of Scheduled Tribe Muslims from participating in the waqf framework.
In this piece, I focus on this exclusion, and submit that the central problem lies in the Court’s mode of addressal — where instead of grappling with the tension between Scheduled protections and Part III, the Court retreats into a compartmentalised reading of the constitutional scheme. This inadequacy, I argue, stems from two cumulative moves that together erode adjudicative legitimacy: (i) the absence of an intersectional lens, which renders ST Muslims invisible within both minority and tribal frameworks; and (ii) a misplaced self-image of punching up, which in substance amounts to punching down — reinforcing rather than unsettling existing hierarchies. In so doing, the Court (under the guise of protective reasoning) takes the path of least resistance, leaving intact a hierarchy of rights it found easier to accept than to interrogate.
Inadequate Addressal
At the very outset, it is necessary to recall the place of the Fifth and Sixth Schedules within the Constitution. While they are spoken of separately, their philosophy remains the same, i.e. the protection of tribal autonomy in matters of governance and control over land resources. Besides, land for the Scheduled Tribes, cannot be simply construed as a commodity. It is the locus of their community identity, history, and culture. All the Constitution does, to this end, is erect strong protective barriers around it. Seen thus, the prohibition contained in the 2025 Act does not appear completely without logic.
For if the goal is to prevent alienation of tribal land to outside institutions, then barring waqf declarations in Scheduled Areas is arguably consistent with the constitutional commitment.
But here lies the difficulty. The same Constitution that entrenches the Fifth and Sixth Schedules also entrenches rights under Part III. While Article 25 ensures every person’s liberty to freely practice their faith; Article 26 secures the autonomy of denominations to manage their own affairs in matters of religion. Overlay this with Article 14, and the matter becomes sharper still. The waqf is not a mere appendage to Islam. It is a centuries-old institution that represents a living manifestation of the faith’s conception of charity and community responsibility. Hence, to preclude an entire subset of Muslims from creating or maintaining waqf is not simply a matter of land regulation, but a direct encroachment upon their ability to give religious effect to their cultural lives.
This, then, is the point of departure. For the Court declined to even engage with this conflict. Its reasoning spans a few paragraphs (¶173–178) where it recites the non-obstante clause in the 2025 Act (¶173); restates the constitutional design of the Schedules (¶174); invokes past statutes and judgements that protected tribal lands (¶176); and affirms that the Joint Parliamentary Committee had noted instances of waqf declarations threatening tribal practices (¶177). From this, the Court concluded that the provision has a rational nexus to the object sought to be achieved, and therefore cannot be termed arbitrary (¶178).
The sum total of judicial analysis is striking not merely in its brevity, but the framing. For the Court confines itself to an isolated reading, treating the Fifth and Sixth Schedules as if they provide exhaustive answers. However, if such a line of reasoning is indeed to be accepted — Article 13 risks becoming redundant and the power of judicial review insignificant. This, perhaps, is precisely what the Court in Peerless (¶48) warned against. It emphasised that while regulation of rights may be legitimate given the legislative form purports to pursue a benign end, the degree and mode of regulation cannot amount to a total annihilation of the right. It cautioned:
“If it directly transgresses or substantially and inevitably effects the fundamental right, it becomes unconstitutional, but not where the impact is only remotely possibly or incidental. The court must lift the veil of the form and appearance to discover the true character and the nature of the legislation, and every endeavor should be made to have the efficacy of fundamental right maintained and the legislature is not invested with unbounded power.” emphasis mine
Could waqf declarations be permitted, subject to the consent of the Governor or the Autonomous District Councils? Could ST Muslims be allowed to create waqf only over their own property, with safeguards against external capture? Could the State design a framework that both prevents elite appropriation of tribal land and allows ST Muslims to give religious expression to their culture?
These are precisely the questions that constitutional adjudication ought to raise. Instead, the Court chose the path of least resistance, treating the existence of a Schedule-based protection as a trump card. This abdication has implications. For adjudicative legitimacy does not lie in mechanically applying what the text says, but in reasoning through the silences that the text itself generates (where rights under the Schedules and Part III collide, for one). As Professor Fadel argues, such silences catalyse pragmatism, whereas a more rigid view invites instability. Seen thus, the Court was tasked not with picking a winner by default, but with working out a reconciliation that preserves the essence of both.
By refusing to acknowledge, let alone address this conflict, the Court chooses a minimalist approach that looks like neutrality but functions as abdication. The consequence, clearly, is that the most vulnerable group becomes the easiest to sacrifice.
Two Failures, One Legitimacy Deficit
To be clear, none of this is to deny the purpose of the Schedules, i.e. pluralism and indigenous self-rule. But fidelity to that purpose does not require blindness to exclusion. Indeed, the very rationale for tribal protections is to insulate vulnerable communities from domination. However, when that rationale is deployed to curtail the religious freedoms of a subset of those very communities, we reach a point where protection in form becomes domination in substance. This paradox, I argue, should have been the fulcrum of judicial analysis. Instead, in In Re: Waqf the Court sidesteps it entirely — content with the thin gruel of a nexus review.
However, such a paradox does not emerge in isolation. It is sustained by two overlapping failures that together weaken the Court’s claim to legitimacy: (i) the absence of an intersectional lens that renders ST Muslims invisible; and (ii) a misplaced reliance on the punching up illusion, which masks structural domination beneath the rhetoric of judicial protection.
(i) Intersectional Invisibility
Kimberlé Crenshaw’s concept of intersectionality helps illuminate what is at stake in the exclusion of ST Muslims. Intersectionality tells us that belonging simultaneously to two disadvantaged groups does not simply add vulnerabilities together. Instead, it produces a distinct experience of marginalisation that is greater than the sum of its parts. This invisibility occurs when the overlap between identities renders those at the crossroads unseen in both frameworks of protection.
The exclusion of ST Muslims from creating waqf, I suggest, reflects a similar pattern. By focusing on tribal identity in isolation, appears to frame the problem as one of safeguarding customary institutions from external encroachment (¶175-176). Thus, by treating (a) protecting tribal land and (b) protecting Muslim culture as mutually exclusive objectives it misses the lived experience of those who are both tribal and Muslim — for whom, waqf is not merely a threat to tribal identity but also a mode of expressing religious and cultural autonomy within it. For it is precisely when the courts adopt this blindness, that they legitimise a hierarchy of rights. As again, the tribal without the Muslim is visible, the Muslim without the tribal is visible, but the tribal Muslim remains unseen.
(ii) Punching Up, Punching Down
Comedy theory often distinguishes between “punching up” and “punching down.” The former involves challenging structures of power by targeting those higher in the social or political hierarchy, while the latter mocks or diminishes groups already disadvantaged. The point is not simply about direction, but about effect. For a joke aimed upwards might be uncomfortable but carries emancipatory potential, whereas one aimed downwards risks reinforcing the very hierarchies that persist, and therefore becomes part of the problem.
This vocabulary of comedy, I suggest, has explanatory force here. For the Court often likes to imagine itself as punching up — deploying its authority to shield vulnerable groups from being overwhelmed by dominant social and political forces. Consider for instance, the marriage equality judgement. The majority held that while queer couples have a right to enter into relationships of their choice (punching up against heteronormativity), there exists no corresponding right to enter into civil unions approximating marriage that would confer a legal status and rights emanating from the same. Hence, by passing the buck on to the legislature to enable this right, the Court, in effect, punched down — leaving intact the material inequalities of status and recognition.
In In Re: Waqf, that self-image is visible. The petitioners had primarily challenged the 2025 Act as undermining both equality and the Muslim community’s right to cultural autonomy. The Court, in turn, cast the restrictions on waqf as measures to prevent elite capture of tribal land and to preserve self-governing autonomy in Scheduled Areas. On the surface, then, the Court seemed to punch up.
Three interpretive frames emerge:
First, if the Muslim community’s cultural autonomy is taken to be preserved in the abstract while ST Muslims are excluded from its scope, then the result is a hierarchy within the minority itself. What appears as protection for the community as a whole becomes an exclusion of its most vulnerable members. In effect, the Court recognises autonomy at the level of the aggregate but denies it at the level of the intersectional individual — an internal contradiction that translates directly into punching down.
Second, if the waqf itself is cast as an elite institution, the judgement again, at least optically, seems to punch up — acting as a check against powerful actors appropriating tribal land. However, ST Muslims occupy the intersection of two vulnerabilities — tribal identity and religious minority. They are hardly dominant actors in the property landscape. Their exclusion from the waqf framework, therefore, does not shield against any exploitation but simply compounds it. What looks like punching up, is still, in practice, punching down.
Finally, I submit that the metaphor extends even more literally. To punch up, one must expend greater effort, because the impact must travel against gravity. Punching down, by contrast, requires little effort and lands easily, because the target is already below. Here too, the Court takes the path of least resistance. For it is much easier to curtail the rights of ST Muslims than to confront the state directly on questions of land autonomy and develop a jurisprudence reconciling tribal protections with minority rights.
To sum, the legitimacy of adjudication depends not only on what the Court appears to be doing but also on what its decisions actually achieve. When optics diverge from impact, the danger then, is that exclusion becomes naturalised under the guise of protection.
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