New Delhi: No community can claim statutory protection to its “dedications” while insisting that secular regulatory functions be limited to its members, the Centre has asserted before the Supreme Court, while defending the Waqf (Amendment) Act, 2025.
Rather, the legislative design of the new law to govern waqf properties would ensure that no person is denied access to courts, and that “decisions affecting property rights, religious freedom, and public charity are made within the bounds of fairness and legality,” it said in a 1,600-page affidavit filed Friday.
The changes, it added, bring judicial accountability, transparency and fairness in the management of waqf properties. Under the old regime, there was rampant misuse of the waqf provision to encroach upon private and government properties. Post the 2013 amendment, the Centre highlighted, there has been a “shocking increase” by 116 percent rise in waqf area in the country.
The Centre has filed its affidavit in response to approximately 100 petitions in SC, questioning the constitutional validity of the Act. During a hearing last week, the Centre had undertaken not to alter the status of all waqf properties, including those that are already registered or notified through a gazette, providing relief to many such properties that on account of the new law face the risk of losing the waqf character in revenue records.
Additionally, it had promised not to appoint new members to the Central Wakf Council or the State Waqf Boards, after concerns were expressed over the inclusion of non-Muslim in these bodies that would primarily regulate properties dedicated for charity purposes in line with Islamic practices. This interference, the petitioners have said, impinges the Muslim community’s freedom to practice and profess its faith, apart from managing its religious affairs.
A day before the Centre made its promise, the court had posed searching queries about the potential disturbance the new law could create. The bench, led by Chief Justice of India (CJI) Sanjiv Khanna, felt it was imperative to put on hold operation of crucial provisions that threatened to invalidate several properties that have been treated as waqf for decades. This, it felt, could have serious consequences on the ground.
It was during this hearing that the court questioned the Centre for nominating non-Muslims as members of the central council and state board, asking if a temple board would allow non-Hindus to manage the affairs of the religious institution.
Waqf council & state boards
Addressing this concern, the Centre drew a distinction between the waqf council and board and other enactments that regulate religious institutions. It, the government said, would be unfounded to draw a parallel between a waqf council and Hindu Endowment Acts existing in few states and this comparison militates against the broad nature of “waqf board” and limited compass of the religious and endowment acts.
The Centre maintained that the waqf council and state boards do not conduct a “religious function.” As advisory bodies, they regulate or supervise or oversee secular aspects of waqf – primarily administration of properties.
The new law does not interfere in the waqf, which, the Centre claimed, can be for non-religious purposes also such as for orphans, health care facilities, for educational institutions, scholarships and to support the poor and needy through various programmes.
“In the emerging world scenario, various innovative forms of waqfs have also emerged such as Cash Waqfs, Corporate Waqfs and Waqfs Sukuk [Islamic bonds],” it added, pointing out that judicial pronouncements have also opined that Waqf Board is a secular body and is not a representative body of Muslims.
While insisting that out of 22 members in the Waqf Council, only four members would be non-Muslims, the Centre maintained that the changes in the composition of either the central council or state board does not impair upon the Muslim community’s rights under Article 26, which is to manage their religious affairs.
If the ex-officio chairman, reserved for the Minister of Minority Affairs, and the Joint Secretary, who too is an ex-officio, are Muslims, then only two members would be non-Muslims, the affidavit clarified.
“Thus, it is clear that non-Muslim members are in a microscopic minority and they are included to give inclusivity and with a view to ensure their participation,” the Centre submitted.
Dealing elaborately with the role of a waqf council as well as board, the Centre explained why non-Muslims are needed in the two bodies. The council and the board, it said, deal with wide ranging issues which may require dealing with members of other faiths, who may either be beneficiaries or aggrieved parties.
As far the right under Article 26 is concerned, the Centre added that the provisions does not confer an absolute right to administer a property in accordance with the tenets of religion. Moreover, practices associated with a religion, which are essentially of secular nature, can be validly regulated by law, the Centre said, backing the new waqf law.
Giving a historical background on waqf, the Centre said waqfs used to be under administration, supervision and control of non-Muslim Charity Commissioners in many states in the past.
Calling it a constitutionally valid enactment that formalises, harmonises and modernises the pre-existing waqf regime with the fundamental rights to freedom of religion guaranteed under Articles 25 and 26 of the Constitution, the Centre said the new law was passed with the objective to manage waqf properties through transparent, efficient and inclusive measures.
The new legal regime permits Muslim citizens to do charity or serve their religion beyond the medium of waqf, it added.
“A Muslim citizen of a secular nation can always choose to create either a private trust or a public charitable trust and choose to be governed by different legislations governing trusts. This provision takes care of protection of the said fundamental rights of all Muslims,” the Centre said, explaining the purpose behind keeping all private trusts, formed with the purpose similar to that of a waqf, outside the purview of the new waqf law.
The law gives the Muslims the freedom to decide which framework they will prefer to abide by when it comes to carrying out charity work, it added.
In this backdrop, the new law, the Centre submitted, restores and reinforces the essential freedom under the Constitution, which guarantees freedom of conscience and the right to freely profess, practice, and propagate religion. “It is submitted that freedom of religion includes the freedom not to be compelled to act in a religious manner or under a religious regime such as waqf, particularly when engaging in secular charitable acts.”
Asserting its legislative competence to frame a new regulatory framework to manage waqf properties, the Centre said the Joint Parliamentary Committee (JPC) undertook an extensive exercise and consulted various relevant stakeholders before preparing its report recommending the changes to the law.
Also Read: 1995 Waqf Act balanced Islamic principles and Indian law. Amendment Bill shifts the scales
Misuse of ‘waqf by user’
During the deliberations, it said, the panel learnt about how the ‘waqf by user’ has been misused for decades and that despite a regime of mandatory registration since 1923, many properties remain unregistered. This led individuals and organisations to claim private and government lands as waqf, which not only affected individual property rights but allowed unauthorised claims over public properties.
Giving data of the 116 percent increase in waqf properties, the Centre said this exponential rise called for a serious look at the statutory architecture of the 1995 Act, which was later amended in 2013. This prompted the government to move ahead to introduce changes in the law for ushering transparency in the administration of waqf properties, particularly in the face of serious complaints of land grabbing and encroachments on private, government land, it added.
“It is submitted that in a democracy governed by the rule of law, land and property vested in the State cannot be alienated without lawful authority and statutory procedure,” the Centre submitted, justifying addition of Section 3C to the new law. According to Section 3C, if a waqf property is identified as government land, it would not be treated as a waqf until the local Deputy Collector finishes inquiry over the actual nature of the property.
The Centre maintained that ‘waqfs by user’ registered before the amendment would, therefore, continue to be treated as waqf in terms of the new law.
This protection would extend to even those waqf by user properties that were registered without any document, the deadline for which is 8 April, 2025, the date of the new law’s notification. It essentially means the 2025 Act will have prospective application and waqf by user properties will not have any legal recognition from now on.
Taking into account waqf law’s legislative history, the Centre submitted registration of all waqf, including ‘waqf-by-user’ has always been mandatory. Therefore, no one can have a rightful claim to raise a claim of ‘waqf by user’ if it is not registered, it said, while defending omission of the ‘waqf-by-user’ clause in the 2025 Act.
“It is submitted that if anyone has tried to evade this entire legislative architecture [and acted in gross violation of the same] existing since last 100 years, there is no justification to argue that exclusion of unregistered ‘waqf by user’ is either arbitrary, unreasonable or without any logic, purpose or intent,” the Centre said.
Despite mandatory registration of all waqfs including ‘waqf by user’ right from 1923, the menace of deliberate non-registration continued as several waqfs did not wish to come under the statutory regulatory mechanism. This was also observed in 1976 by a government-appointed committee, the Centre said.
To put on hold the section that protects registered ‘waqf by user’ will not only defeat the object and provision of the new law, but will result in anomalies such as create a legislative regime by judicial order; defeat the object, intent and purpose of the Act; give a premium to unregistered ‘waqf by user’ who have been defying law of the land since more than 100 years; legitimize unregistered ‘waqf by user’ which is precluded and penalised by law.
This, the government said, would make it impossible for any authority or court to prevent fictitious claims of ‘waqf by user’, and encourage public mischief that will also harm the Muslims as well who are supporting the amendment.
The law, the Centre insisted, does not impinge upon any essential religious practices or tenets of the Islamic faith since it does not touch upon how to create a waqf, for what purpose a waqf is to be created and how the waqf is to function internally.
The Centre also opposed the court’s idea to stay the law, arguing that a law is usually put on hold if its operation is likely to give rise to irreversible situation in case an interim order is not made. However, the same, it explained, is not true in the case of Waqf (Amendment) Act, 2025. Appointments of non-Muslims to the central council and state waqf boards is not a situation that cannot be reversed, as suggested by the petitioners, the Centre said.
To stay the law would amount to treating it as unconstitutional at an interim stage, which is impermissible, it said. Moreover, no individual case has come to the court, complaining of injustice caused due to the amendment, the Centre said, contending the petitions make general arguments of legislative overreach, primarily in relation to the rights of Muslims in the context of their right to practice their religion.
The Centre also stressed on the need for judicial consistency in granting an interim order. It pointed out that petitions challenging the 1995 Waqf Act and 2013 amendment to the law are pending in the Supreme Court as well as various high courts for considerable time. However, none of the courts have stayed or given an interim order favoring the petitioners, who have challenged the waqf-by-user concept.
(Edited by Tony Rai)
Also Read: What SC said on waqf-by-user, non-Muslims in council on Day 1 of hearing on Waqf Act amendments