Blanket stay uncalled for: Govt on waqf law
The Centre defended the Waqf Amendment Act 2025 in the Supreme Court, asserting it doesn't violate Muslims' rights and regulates waqf management's secular aspects.
The Centre told the Supreme Court on Friday that a blanket stay on the Waqf Amendment Act 2025 is unwarranted as petitions challenging the law “do not complain of injustice in any individual case” requiring an interim order, and stated that the legislation does not violate the fundamental rights of Muslims.
In a detailed 160-page affidavit defending the contentious legislation, the government sought to draw a distinction, stating it the law respects the essential religious practices of the Muslim community by leaving matters of faith and worship untouched, but regulates the “secular, administrative facets of waqf management”.
The response comes a week after the Supreme Court recorded assurances from Solicitor General Tushar Mehta that the government would not change the status of any waqf properties, including waqf-by-user, or appoint non-Muslims to waqf bodies until the next hearing in May. The submission, which in effect paused the law, came after the court indicated it would have otherwise passed an interim order.
During the proceedings on April 17, the bench led by Chief Justice Sanjiv Khanna had identified three primary concerns with the 2025 Act: the status of previously declared waqf-by-user properties, appointment of non-Muslims to waqf bodies, and the provision preventing disputed government properties from being classified as waqf.
It was hearing petitions by Muslim parliamentarians, academics, religious leaders, and community organisations that contended the law infringes on Muslims’ fundamental right to dedicate properties as waqf.
They expressed particular concern that historically recognised waqf-by-user properties, which lack formal registration documents but have functioned as waqf for generations, now face de-notification under the new registration requirements. This, petitioners claimed, threatens the legal status of numerous longstanding religious and charitable endowments across the country
The Union government, in its response, asserted that the Act “clearly stands on firm constitutional ground” and does not violate fundamental rights of Muslims as it respects essential religious practices while regulating only secular aspects of waqf management.
“The Act respects the essential religious practices of the Muslim community by leaving matters of faith and worship untouched, while legitimately regulating the secular, administrative facets of waqf management as authorised by the Constitution,” the affidavit stated.
Addressing the court’s concerns about non-Muslim appointments, the Centre called such inclusion “miniscule” — limited to a maximum of four members in the 22-member Council and three in the 11-member Boards.
“No community can claim as of right the benefits of a statutory protection to its dedications while insisting that even the secular regulatory functions be limited to members of that community,” the Centre argued.
The government distinguished waqf from other religious endowments, describing it as a “wider” concept applying to both charitable and religious institutions. On the court’s questions about whether Muslims would be allowed positions in Hindu religious endowments, the Centre emphasised this distinction.
“In view of this wider understanding of waqf, the parallel with other religious institutions or endowment enactment would be inappropriate. The waqf regime, which is wider and ever evolving, requires a suitably tailored approach,” the Centre explained.
The affidavit maintained that “Waqf Council and State Boards do not conduct a religious function, rather regulate or supervise or oversee secular aspects of waqf – primarily administration of properties.”
While acknowledging that creating a waqf is a practice encouraged in Islam, the Centre argued, “None of the essential Islamic tenets prescribe the manner in which waqf properties are administered, accounted for, or supervised.”
“The Act does not alter the religious obligation or spiritual nature of waqf in any way, but only addresses the incidental secular mechanisms surrounding it,” the government stated.
The Centre cited Article 26(d) of the Constitution, which requires administering properties “in accordance with law,” to justify legislative regulation. It argued that the reforms serve “compelling objectives of transparency, accountability, social welfare and inclusive governance” while bringing “judicial accountability” to waqf property identification and regulation.
Responding to the court’s concern about disputed government properties, the Centre highlighted what it described as widespread misuse of previous legislation, claiming a “shocking” 116% increase in waqf land after the 2013 amendment. According to the affidavit, while total waqf land before 2013 (including pre-independence era) was approximately 18 lakh (1.8 million) acres, an additional 20 lakh (2 million) acres were added between 2013 and 2024.
Defending its provisions which provides that in the event of dispute over a waqf property being government property, the user cannot continue it as waqf, the Centre said: “Government properties are held in public trust. To suggest that a beneficial legislation that confers validity on religious dedications should give primacy to such alleged dedications and their administration over property held in trust by the governments for the benefit of the citizens of the country, is utterly misconceived.”
The affidavit cited “repeated and documented instances” where Waqf Boards had claimed title over “government land, public utilities, and protected monuments without deed, survey, or adjudication—relying solely on Board’s unilateral records.” These claims reportedly included “Collector’s offices, government schools, ASI-protected heritage sites, and land vested in state or municipal authorities.”
Addressing the court’s apprehensions regarding waqf-by-user properties that were raised by senior advocates Kapil Sibal and Abhishek Manu Singhvi during the Aprul 17 hearing, the government dismissed concerns, arguing that registration has been mandatory since the 1923 Mussalman Waqf Act.
The Centre accused petitioners of building a “deliberate, purposeful and intentionally misleading narrative” that waqfs without documentation would be affected. “This is not only untrue and false but purposefully and deliberately misleading this court,” it claimed.
The government explained that the concept of waqf by user originated when “writing or executing deeds for anything was a rare phenomenon,” but mandatory registration since 1923 means “those who deliberately evaded or avoided to get ‘waqf by user’ registered cannot claim the benefits of the proviso.”
According to the Centre, Section 40 of the old 1995 Act was “the most misused provision” as it allowed Waqf Boards to “declare any property of private individuals or those belonging to the government as waqf properties.”
The 2025 Act makes registration mandatory for waqf-by-user properties as of April 8, 2025, with the Centre arguing, “When the country has entered into a completely different era in 2025, no one can still insist for ‘oral’ creation of waqf when no other document is permitted without written form.”
While approximately 70 petitions have been filed challenging the legislation, the Supreme Court ordered petitioners to select five lead petitions to address all challenges. These will be heard on May 5 under the common title “In Re: Waqf Amendment Act 2025.” The petitioners have nominated submissions from Jamiat Ulama-i-Hind president Arshad Madani, social worker Muhammad Jameel Merchant, AIMPLB general secretary Mohammed Fazlurrahim, Manipur MLA Sheikh Noorul Hassan, and AIMIM chief Asaduddin Owaisi.
