Waqf Not An Essential Part Of Islam: Centre Defends Waqf Amendment Act, 2025 Before Supreme Court

A Bench Chief Justice of India B.R. Gavai and Justice Augustine George Masih, while hearing SG Solicitor General Tushar Mehta, was interrupted by Senior Advocate P. Wilson wanting to make submissions opposing the amendment, to which CJI Gavai firmly remarked, “This Court has become very difficult. No respect at all.”

Legislative Process and Petitioners’ Locus

The Solicitor General started by submitting that the Petitioners had no locus standi, stating, “The petitions have been filed by individuals who are not directly affected. There is no contention that Parliament lacked the competence to enact this legislation.” He added that a comprehensive exercise preceded the legislation, referring to the deliberations of the Joint Parliamentary Committee (JPC). “This is not a case where a Ministry drafts a Bill and it is passed mechanically. We are addressing a menace that dates back to 1923,” he said. He noted that the JPC held 96 sittings and received 97 lakh representations, adding, “A few Petitioners cannot claim to represent the entire Muslim community.”

Referring to paragraph 24 of page 11 of the JPC report, he submitted that 25 State Waqf Boards were consulted and that each clause was examined to record their views. “A voluminous report was prepared, with several suggestions being either accepted or rejected. After incorporating the proposed amendments, the Bill was tabled and passed with an unprecedented majority,” Mehta submitted.

The Solicitor General then referred to his written submissions and stated that while his note was confined to three main issues, he would address all the issues raised.

Waqf by User, Government Land, and Role of the Designated Officer

Tracing the legislative history, Mehta submitted, “The 1923 Act said a Muslim can create a waqf because waqf by its very nature is an Islamic concept. The 1994 Act again said only a Muslim can create a waqf. The 1995 Act also said only a Muslim can create a waqf.” He then referred to an amendment passed in November 2013, “incidentally few months before the country was to go for elections in March 2014.”

He highlighted a positive change introduced, stating, “Earlier, there was the concept of waqf alal aulad, dedication to Allah for the benefit of one's children, but daughters and widows were not included. This is introduced for the first time, not under challenge fortunately.”

Addressing the issue of waqf by user, Mehta submitted that protection is granted prospectively, with two exceptions: if the property is already in dispute or if it is government land. “No one can claim rights over government land simply by usage… if that were allowed, theoretically the entire country could be claimed,” he remarked, adding that the government holds such land in trust for the public.

Responding to the Bench’s query regarding the authority adjudicating such claims, the Chief Justice noted that the challenge is that “a government officer, someone above the Collector, is adjudicating the government’s own claim and giving it finality.” Mehta countered, “That is not just misleading, it is outrightly false.” Referring to Section 3C, he said that the JPC had specifically decided to vest authority in an officer above the Collector to address such concerns. “If Your Lordships feel it should be removed, so be it, delete the proviso,” he said. When asked by the Chief Justice whether he was referring to the entire section, Mehta clarified, “No, only the proviso.”

When the Bench questioned the effect of the order under Section 3C, Mehta replied that the only consequence would be a correction in the revenue and Waqf Board records. “The government would still need to file a suit for title,” he said, adding, “In all fairness, this affidavit should have been brought to the Court’s attention earlier.”

He emphatically rejected the argument that the amendment results in a wholesale takeover of Waqf properties, saying it is “misleading.” Reading from the affidavit, he said, “The Designated Officer is not making any final determination of title; the only outcome is an update to the revenue records.” He stated that affected parties can approach the Waqf Tribunal and the final adjudication of title will lie with the Tribunal or, in appeal, with the High Courts.

Chief Justice Gavai pointed out the concern that once the Collector initiates proceedings, the property’s status as waqf is affected. Mehta responded, “There are statutory safeguards. If title is not settled, the government must file a suit for declaration.” Justice Masih asked, “So, as per your stand, possession remains undisturbed unless proper legal recourse is taken?” to which Mehta replied, “Yes, I was waiting for them to point that out.” The Chief Justice remarked, “You expect that in this Court?” Mehta responded, “Some petitions are from High Courts, so…” The Chief Justice added, “Still, even here, arguments are selectively presented.”

Tribunal Powers, Property Possession, and Registration Framework

Referring to Clause 9 of Section 83, Mehta said the Tribunal now has all the powers of a Civil Court. “Earlier, it had only revisional jurisdiction with limited appeals,” he explained. He clarified that the Section 3C order is “absolutely wrong” to be treated as final and remains “subject to judicial review.”

When the Chief Justice asked Senior Advocate Gopal Sankaranarayanan whether he was on the respondent's side, Mehta clarified that he appeared for one of the Waqf Boards. “Even the entire community is not opposing the Act,” he submitted. However, the Chief Justice noted, “Do not take the community argument, we will decide on law.”

Addressing Section 3C again, Mehta said, “During the suit, only the character of the waqf is suspended. Section 3C merely updates the revenue records.” Justice Masih asked whether possession and waqf status continued during this period, to which Mehta replied, “Yes, there is an embargo in place.” In response to a hypothetical from the Chief Justice about alienation of the property, Mehta said, “They cannot. The status quo must be maintained.”

On the allegation of takeover through administrative processes, Mehta submitted, “Possession cannot be taken over by Section 3(C), this argument has been deliberately misunderstood.” He added that Courts usually do not entertain challenges before a statute is brought into force. “There can be no academic challenge,” he submitted, adding that registered waqf by user will be protected.

On registration, Mehta responded to the claim that there were no consequences for non-registration by tracing the history of the legislative framework. “In 1923, the first legislation regulating waqf property was enacted, highlighting how property was being misappropriated… This problem has persisted for 102 years,” he submitted. Referring to Section 3 of the Sharia Act, he said it applied only to Muslims.

Chief Justice Gavai asked if registration was provided for in the 1923 Act, noting that Senior Advocate Kapil Sibal had submitted it was introduced only in 1954. Mehta asserted, “There is a misleading campaign ongoing… Section 3 of the 1923 Act did provide for registration. The description of the waqf was important, not the deed itself.”

He explained that only a description of the waqf was needed and not records from a century ago. “The 1923 Act requires providing whatever information you have about the origin or history,” he said. For waqfs created after 1923, he added, “you must approach the Court within six months.”

Responding to the petitioners’ argument that non-registration bars access to Courts, Mehta said this was a misreading. “That is an absurd interpretation of the statute,” he submitted. Justice Masih observed that in any case, “there is no provision stating that the waqf would cease to be a waqf.”

He referred to Section 25 of the Waqf Act and submitted, “Every waqf, whether created before or after the commencement of this Act, shall be registered at the office of the Waqf Commissioner.” He clarified that even if a waqf is a hundred years old, it can still be registered if missed earlier.

Charity, Legislative Policy, and Non-Muslim Inclusion

He said that the government realised registration was being disregarded. “There was mala fide conduct, and waqf properties were being managed solely at the discretion of the mutawallis,” Mehta submitted. He referred to a 1976 committee that recommended changes which led to an amendment in 1984 inserting Section 55A to bar suits concerning unregistered waqf properties, though it was never brought into force.

Due to opposition from the Muslim community, that amendment was dropped. Mehta said a similar provision in Section 87 of the 1995 Act was also deleted in November 2013.

He submitted that the registration framework is liberal and that anyone can apply for registration. “It is compulsory… The purpose is to incentivise registration so that such public denominations come under the regulatory framework,” he said.

Referring to widespread claims about documents being demanded to snatch waqf properties, Mehta said, “False narrative is being created… The country is being misled.” He added that the government must protect its property, as it is the custodian of public assets.

Citing a case by the State of Andhra Pradesh, he read from the judgment showing how government land was wrongly claimed as waqf. He dismissed the argument that the government was acting as a judge in its own cause, stating that revenue officers have legal authority to determine entries unless shown to have personal bias.

He submitted that waqf by user is not a fundamental right but one conferred by statute. “If a right is conferred as a matter of legislative policy, the same right can be withdrawn by the legislature,” he said. “Waqf is an Islamic concept, no dispute about it. But waqf is not an essential part of Islam,” he submitted.

He said charity is part of every religion, but not an essential practice. Referring to Dr. B.R. Ambedkar’s speech, he distinguished between mere religious practices and essential ones.

Responding to the challenge to the inclusion of non-Muslims in Waqf Boards, Mehta said, “The Joint Parliamentary Committee recommended inclusion of non-Muslims to promote inclusivity.” He added that at the Central level, a maximum of four of the 22 members could be non-Muslims, and at the State level, up to three in a Board of 11, with further restrictions if one of the ex-officio members was already non-Muslim.

Drawing comparisons, he submitted that in States like Maharashtra and Gujarat, temples are governed under the Bombay Public Trusts Act, and their overseeing Charity Commissioners can be Muslims, despite temples being purely religious institutions.

SG Mehta will continue his arguments tomorrow.

Senior Advocate Dr. Abhishek Manu Singhvi, also appearing for the Petitioners, argued, “Section 3(r) requires proof of practising Islam, and uses the troubling term 'contrivance', leading to vague, arbitrary, and endless government office visits. Religious endowments exist in all faiths, no other religion demands proof of adherence or practice before recognising such endowments. This provision violates Article 15 of the Constitution, which prohibits discrimination on grounds of religion, both textually and in spirit.”

On May 15, the Court had clarified, "We will not consider any request to hear a challenge against provisions of 1995 Act...We are making it clear...Just because 2025 Act is considered here...cannot make those points now...". The Court made the said observation while Counsel for parties challenging provisions of the 1995 Act, as well as the 2025 amendment, as violative of the rights of people of other religions, sought allocation of time to make submissions on the next date.

On April 17, 2025, the Court had recorded the Centre's statement that during the pendency of the matter, no appointments would be made to the Waqf Boards or the Central and State Waqf Councils under Sections 9 and 14 of the Act.

Cause Title: In Re The Waqf (Amendment) Act, 2025 (W.P.(C) No. 276/2025)