Waqf not a fundamental right or essential to Islam: Centre to SC
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New Delhi: The Centre, defending the Waqf (Amendment) Act, 2025, told the Supreme Court on Wednesday that while waqf is an Islamic concept, it is not an essential part of Islam. Solicitor General Tushar Mehta, appearing before Chief Justice B R Gavai and Justice Augustine George Masih, argued that waqf essentially means charity in Islam, and charity is recognised in every religion but cannot be deemed an essential tenet of any faith.
Mehta clarified that the amended law addresses secular aspects of waqf and activities that are non-essential to Islam. He emphasized that “waqf by user,” a principle recognising property as waqf based on long-term use for religious or charitable purposes without formal documentation, does not grant any fundamental rights but is a statutory creation that the legislature can modify or revoke. He rejected allegations that the law permits wholesale state takeover of waqf properties, asserting that any possession or eviction can only occur following due legal process through the Waqf Tribunal and subsequent appeals, with possession remaining with the waqf until final adjudication.
The Solicitor General stressed that the Centre, as custodian of properties on behalf of 14 crore citizens, holds that no individual has a right over government land. He cited a Supreme Court judgment affirming the government’s authority to protect public property even if it has been erroneously registered as waqf. Mehta dismissed concerns that government officers might arbitrarily claim waqf land, calling such claims misleading and false. On the issue of an officer above the rank of district collector resolving disputes over alleged waqf property, Mehta clarified that such an officer’s decision is not final.
Mehta highlighted the extensive consultations behind the 2025 amendment, pointing to the 96 sittings held by the Joint Parliamentary Committee, which received 97 lakh representations and incorporated feedback from 25 Waqf Boards and several state governments. He insisted that the bill was not rushed or passed mechanically but underwent detailed, clause-by-clause scrutiny. Many suggestions from stakeholders were incorporated or reasonably rejected.
Addressing the historic misuse of “waqf by user” to claim ownership of public or private lands without documentation, Mehta noted that this problem dates back to 1923 when the first legislation on waqf properties was enacted to curb such abuses. Responding to constitutional concerns under Articles 25 and 26, which guarantee freedom of religion and management of religious affairs, Mehta argued that since waqf is not an essential religious practice in Islam, the law does not infringe upon these rights. He referenced the doctrine of essential religious practices articulated by Dr B R Ambedkar, underscoring that constitutional protection under Article 25 applies only if the practice is essential to the religion.
Mehta differentiated waqf from Hindu and Jain religious trusts, which deal directly with religious activities, temples, and priests, while waqf properties often include secular institutions like schools and colleges. He denied claims that the amendment would lead to mass takeover of waqf properties, clarifying that no designated officer can take possession without due process, and any changes to revenue records are subject to challenge and appeal. Title disputes, he said, will continue to be resolved in courts.
The Solicitor General also addressed concerns about the inclusion of non-Muslims in the Central Waqf Council (CWC) and state waqf boards. He explained that the CWC allows a maximum of four non-Muslim members out of 22, while state boards permit up to three non-Muslims among 11 members, with exceptions if ex-officio members are non-Muslims. Mehta justified this inclusion by stating that non-Muslims can also be affected, aggrieved, or beneficiaries, warranting their representation.
Mehta concluded by stating that no affected parties had challenged Parliament’s competence to pass the legislation and reiterated that the amended law does not allow “waqf by user” rights prospectively. The Supreme Court hearing on the matter will continue on Thursday.
With PTI inputs