New Delhi: The Centre on Wednesday told the Supreme Court that Waqf is an Islamic concept, but it is not an essential part of Islam, as it strongly defended the Waqf (Amendment) Act, 2025. The Centre notified the Waqf Act, 2025, last month after it got President Droupadi Murmu's assent on April 5.
The matter is being heard by a bench led by Chief Justice of India B R Gavai and comprising Justice Augustine George Masih. The bench was hearing petitions challenging the Waqf law, which expands government oversight in regulating waqf properties.
Solicitor General Tushar Mehta, representing the Centre, contended before the bench that waqf is an Islamic concept but it is not an essential part of Islam, and stressed that waqf is nothing but just charity in Islam. Mehta pressed that charity is recognised in every religion, and it cannot be regarded as an essential tenet of any religion.
The petitioners' counsel had argued against including non-Muslim members in Waqf bodies. Mehta contended that waqf is for charity and a waqf board only discharges secular functions, and emphasised that "having 2 non-Muslims, what will it change? It is not touching any religious activity".
Mehta said waqf is not a fundamental right and it was the state's duty to ensure that public property is not diverted illegally, and added that a false narrative is created that they will have to provide documents, or waqf is captured en masse. Mehta argued that judgments show that charity is part of every religion: Hindus have a system of daan, Sikhs also have it and it is also for Christianity.
Centre says creating a waqf is not mandatory in Islam
A note, submitted by Centre in the top court, said creating a waqf is not mandatory in Islam like many other practices and, therefore, is not an essential religious practice in any case. "Waqf, unlike Hindu religious institutions, can be for non-religious purposes also, like hospitals, schools, orphanages, madrasas, etc. There cannot be a blanket right to dedicate movable or immovable property as part of Article 25 and 26, and never has such an absolute right been recognised by the hon’ble courts as an essential religious practice", said the note.
The Centre contended that the dedication of any property for religious, charitable or pious purpose, in its entirety, cannot be an essential religious practice. "Thus, a category of ‘waqf by user’ can always be de-recognised prospectively by the competent legislature", said the note.
The note submitted that Article 26 does not confer an absolute right to administer a property in accordance with the tenets of religion.
SC seeks govt. response on district collector deciding claim over waqf properties
During the hearing, Mehta referred to the report of the joint parliamentary committee and informed the bench that many state governments and state waqf boards were consulted before the law came into being.
The bench sought response from the Centre on petitioners’ contention that an officer above the rank of the district collector can decide the claim over waqf properties on the grounds that they are of government. "This is not just misleading but a false argument", said Mehta.
The Centre has said that 'waqf by user' means the property belongs to someone else and one has acquired the right by continuous usage. Mehta contended that a building which may be government property, can not be examined by the government whether the property belongs to the government or not?
The petitioners’ have vehemently argued that the government cannot decide its own claim. Responding to this contention, Mehta said revenue authorities cannot decide the title but they could examine whether it is government land.
The bench queried Mehta, it has been argued that once an inquiry is conducted by the collector, the property will cease to be a waqf property. The bench further queried that it has been claimed that after the completion of the inquiry the government will take over the entire property? Mehta responded that the government will have to file a title suit for ownership.
Difference between Hindu endowments and Waqf
The Centre has said it is important to note that the endowment acts across some states have far more intricate, pervasive and deeper religious acts to regulate and supervise through the commissioners as opposed to the state boards under the Waqf Act.
Mehta, elaborating on differences between Hindu endowments and Waqf, said the control over Hindu endowments is "pervasive" -- Hindu religious endowments are only religious -- but Muslim waqfs include many secular institutions like schools, madrasas, orphanages, dharamshalas etc.
Mehta cited the example of Bombay Public Trust Act, which governs temples in Maharashtra and its chairman can be of any religion. In the Bombay Public Trusts Act, 1950, applicable to the states of Maharashtra and Gujarat, which covers both religious and secular public trusts and establishes the Charity Commissioner’s office with extensive supervisory authority.
"It is submitted that under this Act, all public trusts must be registered and are subject to direction, inquiry, inspection, audit, and oversight by the Charity Commissioner under Sections 36, 37, 38 and 39…. Similar position arises in many other States where Hindu/ non-Muslim religious institutions are governed by secular Public Charitable Trust Act. In such cases, the Charity Commissioner [by whichever name is called and who may loosely be similar to State Waqf Boards] may or may not be a Hindu", said the Centre’s note.
Distinction between Mutawalli and Sajjadanashin
The Centre has argued that the Waqf Act [including the amendments] do not touch any religious aspects of the Waqf, such as functions of the Sajjadanashin or any other essential religious practices of Muslims in general. The Centre said the enactment merely seeks to efficiently regulate the secular aspects of waqf, grounded in property management and regulation, which is intrinsically public in nature, affecting the rights of the public at large.
Mehta said Sajjadanashin is the spiritual head of the religious waqf denomination, and Mutawalli is the manager of religious waqf denomination. He said Sajjadanashin is not the subject of this Waqf case, as this law has nothing to do with religious and spiritual practice.
"Even if in rare cases, when both Sajjadanashin and Mutawalli are one and the same person, the Waqf Act deals with only the economic, financial and secular activities of waqf and activities regarding the administration of properties as contemplated under Articles 25 and 26 of the Constitution of India. This clearly shows that unlike State statutes dealing with Hindu endowments and Hindu religious institutions, the Waqf Act does not deal with waqfs directly", said the Centre’s note.
Hindu Code Bill
Mehta contended that the new waqf law is to Article 25 of the Constitution, which guarantees freedom of religion. Mehta cited the Hindu Code Bill, 1956, which codified Hindu personal laws.
Mehta argued that when it came in 1956, the personal law rights of Hindus, Christians, Sikhs, Buddhists, Jains were taken away, and then no one said then why only Muslims were left?
Waqf-by-user Principle
Mehta pressed that nobody has the right over government land, and added that there is a Supreme Court judgment which says the government can save the property if it belongs to the government and has been declared as waqf.
The new waqf law has done away with the 'waqf-by-user' provision. The 'waqf-by-user' allowed a property to be treated as waqf based on its long-term use for religious and charitable purposes, even without formal documentation.
The Centre's note said, "The concept of 'Waqf by user' emerged during a period when formal documentation was uncommon. The prospective denial of the creation of new auqaf through the means of ‘waqf by user’ does not deprive a person of the Muslim community to create a waqf. There are various other ways of creation of auqaf and merely de-recognition of means [that too prospective], cannot be held to be violative of any fundamental rights".
"The recognition of ‘waqf by user’ is not a fundamental right in itself. It was given statutory recognition by the Waqf Act. It is a settled position in law that a right conferred by a statute can always be taken away by a statute, as the Legislature is expected to keep pace with changing societal conditions", added the note.
Mehta brought the court's attention on "historic misuse" of waqf-by-user to claim ownership of public or private lands without documentation. Mehta argued that the government is eradicating the menace that was there since 1923, and added, "a few petitioners cannot claim to represent the entire Muslim community. We received 96 lakh representations. The JPC (Joint Parliamentary Committee) had 36 sittings".
The Centre vehemently opposed the claim that the law enabled mass takeover of waqf properties and Mehta made it clear to the apex court that there is no wholesale capturing. "The designated officer cannot take possession. At best, the revenue entry changes, which itself is subject to challenge and appeal. Title disputes will continue to be resolved in courts," he said. The apex court will continue to hear the matter tomorrow.
