The Union of India has filed a detailed Preliminary Counter Affidavit before the Supreme Court, asserting that the Waqf (Amendment) Act, 2025, is a legitimate and necessary exercise of legislative power, intended to enhance transparency, regulate the growing scope of waqf properties, and curb misuse.

The Centre said that 'waqf by user’ and the power “declaring any land as waqf suo motu by waqf board” has proved to be a safe haven of encroachment of government properties and private properties.

The affidavit, sworn by Shersha C. Shaik Mohiddin, Joint Secretary in the Ministry of Minority Affairs, spans three volumes and addresses legal, procedural, and historical concerns raised by the petitioners.

At the outset, the Union points to the constitutional presumption of validity attached to parliamentary enactments. The affidavit states, “It is submitted that it is a settled position in law that constitutional courts would not stay a statutory provision, either directly or indirectly… There is a presumption of constitutionality that applies to laws made by Parliament”.

A major pillar of the Centre’s defence rests on the finding that waqf properties across India have seen a massive and unexplained expansion in the last decade. The affidavit says, “Right before even Mughal era, pre-independence era and post-independence era, the total of wakfs created was 18,29,163.896 acres of land in India,” whereas “shockingly after 2013, the addition of waqf land is 20,92,072.536 acres,” bringing the total to over 39 lakh acres — an increase of 116% in just 11 years. The affidavit further states that this increase “called for a serious look at statutory architecture of the 1995 Act… particularly in the face of serious complaints of land grabbing and encroachments on private lands, government lands, etc.”​.

In support of the amendments, the Union has placed on record the extensive deliberative process leading to the enactment. The affidavit recounts that the Waqf (Amendment) Bill, 2024 was introduced in the Lok Sabha on August 8, 2024 and referred to a Joint Parliamentary Committee (JPC) comprising 31 Members of Parliament. The JPC received “97,27,772 memorandums from across the country,” undertook three study visits to ten cities, and held “36 sittings” with inputs from “284 stakeholders, 25 State Waqf Boards, 15 State Governments, 5 minority commissions and 20 Ministers / MPs / MLAs”​.

The affidavit contains a clause-by-clause explanation of the amendments. A significant change is the substitution of the Survey Commissioner with the Collector in Section 100. Justifying the amendment, the affidavit states, “Since the duties of the Survey Commissioner have been transferred to the Collector, the Collector is now protected under the provisions during the discharge of public duties”​.

On the omission of Section 104, which earlier allowed non-Muslims to create waqf, the affidavit clarifies that the amendment reflects the religious specificity of waqf. “Non-Muslims are no longer allowed to create waqf, as the proposed definition of waqf requires the donor to be a Muslim who has practiced Islam for at least five years,” the Ministry stated before the Committee.

While the creation of waqf is now limited to Muslims, the amended Act provides for the inclusion of non-Muslims in the Central Waqf Council. The affidavit states, “Two members of the Central Waqf Council must be non-Muslims.”​ Further clarifying, it states, “Only ten out of twenty-two members are required to be Muslims; others can be non-Muslims.”​ The Union justifies this position by stating that waqf involves considerable secular administration, and Section 96 empowers the Central Government to regulate such secular aspects.

On deletion of Sections 107, 108, and 108A, which had exempted waqf properties from the Limitation Act, provided special treatment for evacuee properties, and granted overriding effect to the Waqf Act, the affidavit states, “Section 107 is now being omitted ensuring the applicability of the limitation law in waqf properties that would reduce litigation as earlier disputes will not be brought to the court after the expiry of limitation period”. The Union adds that this change is necessary in light of litigation backlogs and practical governance concerns.

Regarding Section 108A, the Ministry explains, “Omission of Section 108A (overriding effect) facilitates legal harmonization of Waqf Act with other laws. This reduces conflicts and avoids overlapping with the various Acts” .

In anticipation of challenges under Articles 25 and 26 of the Constitution, the affidavit repeatedly emphasizes the secular nature of the amendments. The affidavit says that matters relating to the administration of religious property fall outside the scope of Article 26(b) and are instead governed by Article 26(d), which permits legislative regulation. “Though the denomination has the right to administer the property, it must administer the property in accordance with law,” the affidavit states, asserting Parliament’s competence to enact such legislation.

The affidavit further consists of annexures containing historical waqf legislation. These include the Mussalman Wakf Act, 1923; the Wakf Act, 1954; the Wakf (Amendment) Act, 1984; the Wakf Act, 1995; the Wakf (Amendment) Act, 2013; and the present Waqf (Amendment) Act, 2025.

The Supreme Court is currently hearing a batch of writ petitions challenging various aspects of the amended Act.

Click here to read the Preliminary Counter Affidavit



Waqf ActWaqf BoardWaqf (Amendment) Act 2025

Namrata Banerjee

Supreme Court Correspondent

Namrata is a Correspondent covering the Supreme Court of India. She has previously practiced law and worked in-house with a Public Sector Undertaking.