The legal dispute over the Waqf (Amendment) Act, 2025 has intensified, with the Centre recently submitting a detailed counter-affidavit addressing key constitutional concerns raised by the petitioners.
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NEW DELHI: The legal challenge to the Waqf (Amendment) Act, 2025 is emerging as a major constitutional battle before the Supreme Court, with almost a hundred petitions questioning the validity of the recent amendments.
On 25 April, the Union Government filed its counter-affidavit addressing the various concerns raised by the petitioners. This followed the Court’s earlier decision on 17 April, where a three-judge bench led by Chief Justice Sanjiv Khanna refused to stay the operation of the Act, while directing a freeze on new appointments to Waqf Councils and Boards and maintaining the existing character of waqf properties until the next hearing.
Certain Prime issues , that were highlighted in the petition were highlighted and answered by the Union Government in their Counter Affidavit. The Counter Affidavit deals with the issues elaborately and also highlights the important provisions involved and how their constitutionality must be addressed by the court.
Who Can Create a Waqf
Provision:
Clauses 4(ix)(a) and 4(ix)(d) amend Section 3(r) of the Waqf Act, 1995 to require that only a Muslim — who has professed Islam for at least five years — can create a waqf.
Ground of Challenge:
Petitioners argue that the amendment violates Articles 14, 15, 25, and 300A by discriminating against recent converts to Islam. They contend that no similar restrictions apply to creators of trusts or religious endowments in other faiths.
Moreover, the requirement indirectly forces an intrusive examination into a person’s religious practices — such as whether they have prayed, fasted, or performed religious obligations — thereby infringing their right to privacy under Article 21.
Union’s Response:
The Union has defended the amendment by emphasizing that it does not impose a certification requirement. The affidavit clarifies that
“a person who has practised Islam for five years is not expected to produce a certificate to evidence the same.”
Rather, the provision ensures that individuals have “reasonable time for faith” before permanently dedicating property under Islamic law.
The Government stressed that the 2013 Amendment, which expanded waqf creation rights to
“any person,”
had inadvertently diluted the Islamic character of waqf.
The 2025 amendment corrects this by restoring the original post-independence position — that waqf can only be made by a
“person professing Islam.”
This ensures that the religious sanctity and communal ownership principles underpinning waqfs are not compromised by persons outside the faith.
The Affidavit states:
“It is submitted that the attempt of the various Petitioners which seek to challenge the constitutional validity of the various clauses of the Waqf (Amendment) Act, 2025 on the grounds of Article 14, 15, 21, 25, 26, 29, 30 and 300A is against the basic tenets of judicial review in the country.”
Principle of Waqf by User
Provision:
The 2025 Amendment through Clause 4(ix)(b) deletes the principle of “waqf by user” — recognition of waqfs created through long-standing religious usage without a formal deed. Clause 21(a) additionally mandates the existence of a waqf deed for future validity.
Ground of Challenge:
Petitioners argue that the principle of waqf by user has been central to Muslim charitable practices for centuries and is recognized by Islamic law and the Supreme Court (e.g., in the Ayodhya judgment). Eliminating this principle retroactively invalidates numerous historic religious sites, violating Articles 14, 25, and 26.
Union’s Response:
The Union Government has firmly asserted that
“registration has always been mandatory under the statute governing waqfs for the last 100 years.”
The affidavit highlights that even the Mussalman Wakf Act, 1923 required registration, and that both the Waqf Act, 1954 and Waqf Act, 1995 continued this regime.
The affidavit explains that waqf by user was permissible
“in times when the writing or executing deeds was a rare phenomenon,” but in the modern context, unregistered waqfs create administrative confusion and expose public and private lands to unlawful claims.
Thus, the amendment mandates that only waqfs registered by 8 April 2025 will be recognized under the “user” principle; for future waqfs,
“a waqf deed will be mandatory prospectively.”
The Union argues that this ensures a transparent record and prevents misuse without infringing any genuine religious practice.
The Union has correctly mentioned in it counter affidavit that ,
“there are several such examples which would show how the ‘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.”
Inheritance Rights and Waqf-alal-Aulad
Provision:
Section 3A(2), inserted by Clause 5 of the Amendment Act, states that the creation of a waqf-alal-aulad (family waqf) shall not override the inheritance rights of legal heirs.
Ground of Challenge:
Petitioners contend that
“waqf-alal-aulad is a well-recognized form of Islamic charitable endowment, wherein the benefit initially passes to the waqif’s family before ultimately serving the broader community.“
They argue that applying inheritance law to such waqfs contradicts Islamic jurisprudence and renders the institution of family waqf meaningless, violating Articles 25 and 26.
Union’s Response:
The Union counters that the amendment seeks to protect the rights of legal heirs, especially women heirs, by preventing misuse of the waqf mechanism to bypass inheritance rights under Muslim Personal Law.
It emphasized that
“all the heirs of the waqif, including women heirs, can get a fair share in inheritance.”
Further, it clarified that the
“amendment does not alter the religious principle that once the family line ends, “the benefit of the waqf reaches wider sections of society,” thus continuing the charitable purpose intended by Islamic law“
Declaring Government Land as Non-Waqf
Provision:
Section 3C(1), inserted by Clause 5, specifies that any property owned by the government shall not be deemed waqf, even if previously registered or identified as waqf.
Ground of Challenge:
Petitioners challenge the provision for being vague and overbroad, fearing that it allows the government to arbitrarily deny waqf status to valid properties without proper inquiry, violating Articles 14 and 300A.
Union’s Response:
The Union justifies the amendment by citing widespread abuses, where
“Waqf Boards had claimed title over government lands, public utilities, and even protected heritage sites without deed, survey, or judicial determination.”
Examples were given where waqf claims were made over Collectorate offices, ASI-protected monuments, and government schools, thereby affecting public infrastructure and resources.
The government clarified that
the amendment does not authorize arbitrary deprivation; instead, disputes regarding waqf status will undergo “due enquiry” and “principles of natural justice” before final adjudication.
Aggrieved parties continue to have recourse through Waqf Tribunals and appeals to High Courts, ensuring judicial oversight.
Disregard for Natural Justice and Tribunal Powers in Disputed Properties
Provision:
Section 3C(2) and Clause 23 of the Amendment Act remove the Waqf Tribunal’s exclusive jurisdiction over property disputes, transferring the power to determine whether land is waqf or government-owned to a designated District Collector.
Ground of Challenge:
Petitioners assert that
“shifting adjudication to an executive officer compromises natural justice and the principle of nemo judex in sua causa (no one can judge their own cause), particularly when the government itself is a party interested in denying waqf claims.“
Union’s Response:
The government rebutted these concerns by stating that merely because the officer is appointed by the State, it does not imply presumed bias.
It stated,
“all tax laws are administered by officers appointed by the State yet it cannot be contended that government appointees would, by definition, be predisposed to favour the government.”
The Union contended that strict scrutiny is necessary where claims involve religious dedication over public lands. The amendment, it claimed, fulfills the constitutional mandate under Article 39(b) to protect public resources
“for the benefit of all citizens.”
Additionally, the affidavit assured that parties retain full rights to challenge the Collector’s findings before specialized Waqf Tribunals and High Courts.
The constitutional challenge to the Waqf (Amendment) Act, 2025 raises profound questions regarding the balance between religious freedoms, minority rights, and the State’s duty to protect public resources and ensure transparency.
While the petitioners have invoked violations of fundamental rights under Articles 14, 15, 21, 25, 26, 29, 30, and 300A, the Union Government has robustly defended the legislative measures, asserting that the amendments are not only constitutionally valid but also necessary to modernize and streamline waqf administration.
Importantly, the Government has assured that parties affected by administrative decisions — including findings by the District Collector regarding disputed properties — will retain full rights to challenge such decisions before the specialized Waqf Tribunals and further on appeal to the High Courts. This access to judicial review ensures that procedural fairness and natural justice are preserved.
The Union’s counter-affidavit goes further to emphasize that the challenges mounted by the petitioners are, at this preliminary stage, “against the basic tenets of judicial review in the country”, as judicial review must respect the presumption of constitutionality attached to parliamentary legislation.
Throughout its submissions, the Centre has elaborately highlighted and addressed each and every concern raised by the petitioners, providing point-by-point rebuttals.
Ultimately, the Supreme Court’s adjudication in this matter will carry deep and lasting significance — not only for the future of waqf properties in India, but also for the broader interpretation of religious autonomy, secular administration, and the extent of State regulation permissible under the Indian Constitution.
The hearings scheduled to resume in May are expected to define a new chapter in minority rights jurisprudence, heritage conservation, and State-religion dynamics in India.
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