Today, On 21st May, The Central government told the Supreme Court that waqf boards handle secular duties, so adding non-Muslims won’t impact their work. It also said Hindu trusts differ, as they don’t allow non-Hindus as members.
New Delhi: The Central government informed the Supreme Court that while waqf is an Islamic concept, it is not considered an essential component of Islam. The government argued that waqf boards perform secular functions, allowing for the inclusion of non-Muslims on these boards.
This argument was presented by the Central government’s second senior most law officer, Solicitor General (SG) Tushar Mehta, before a Bench consisting of Chief Justice of India (CJI) BR Gavai and Justice Augustine George Masih.
They were hearing a series of petitions challenging the validity of the recently enacted Waqf (Amendment) Act, 2025.
Also Read: Uttarakhand Waqf Board Moves Supreme Court to Support Waqf (Amendment) Act, 2025
The SG argued,
“Waqf is an Islamic concept. But it is not an essential part of Islam. Unless that is shown, other arguments fail. Charity is part of every religion. It is part of Christianity also, but the Supreme Court says it is not an essential part. Hindus have a system of daan, Sikhs also have (charity) … but it is not an essential part. Please see the functions of the waqf board – managing waqf properties, (ensuring that) accounting is proper, accounts are audited etc. – they are purely secular … Having a maximum of two non-Muslim members – would it change any character? Waqf board is not touching upon any religious activity of any of the waqf,”
He further clarified the distinction between waqf boards and Hindu trusts and endowment boards, which do not permit non-Hindus as members.
One of the petitioners’ arguments was that since non-Hindus are excluded from Hindu endowment boards, Muslims should not face discrimination in allowing non-Muslims on waqf boards.
The SG stated,
“Hindu endowment deals with only religious activity whereas waqf deals with secular activities. Hindu endowment activities are very pervasive. It is under serious challenge. Hindu endowment commissioner can go inside temple. Pujari is decided by the State government. Waqf board do not touch upon religious activity at all,”
During Today’s Hearing, Solicitor General Tushar Mehta, representing the Central government, highlighted that many of the petitions before the Court are public interest litigations and not filed by affected individuals.
He stated,
“Petitions filed by individuals are in PIL and not by any affected individual. The question is whether Parliament has legislative competence is not a question at all. It is my case that few petitioners cannot claim to represent the entire Muslim community. We received 96 lakh representations. The Joint Parliamentary Committee (JPC) had 36 sittings,”
He argued that the law was refined after extensive discussions with the JPC.
He contended,
“There were repeated deliberations with the JPC. They took various inputs from different Muslim bodies. Thereafter, a voluminous report was submitted where suggestions were accepted or rejected with reasons. Then it was passed with unprecedented debate,”
Mehta explained how the current law improves upon earlier legislation regarding the creation of waqf.
The SG said,
“The 1923 Act stated that waqf could be created by waqf by user. The 1955 Act reiterated this. Then, in November 2013, just before elections, the inclusion was made any person, not just Muslims, could create a waqf. (Under the current law), he must be Muslim and must practice Islam for five years. He can create waqf only on his own property, not on someone else’s, to eliminate the issue of encroachment on private or government property,”
He also countered the argument that government officers would decide disputes over waqf property, including title issues.
He explained,
“The government holds the land in trust for all citizens. Waqf by user, by definition, involves property that belongs to someone else. You have acquired the right through continuous usage. Therefore, either private or government property is used for a long period of time. If there is a building that may be government property, can the government not verify whether the property belongs to it? That is provided for in Section 3C,”
CJI Gavai remarked,
“Their contention is that in this case, the government will decide its own claim,”
Mehta argued,
“The revenue authorities determine whether it is government land or not, but only for revenue records. They cannot decide on the title; that is not final. The initial Bill proposed that the collector would decide, but objections were raised that the collector would be a judge in his own case. The JPC suggested that someone other than the collector be designated as the officer. The outcome of the officer’s exercise under Section 3C will be limited to correcting revenue and board records. I have stated this in an affidavit. But nobody brought this to attention,”
CJI Gavai queried,
“So it will just be a paper entry?”
Mehta emphasized,
“It will be a paper entry. However, if the government wants ownership, it will have to file a suit for title. Anyone dealing with trust property will know from the revenue record that the government is the owner and not the waqf. There is no denial of access to justice under Section 3C. The affected party can approach the Waqf tribunal under Section 83 at any stage, which will make the final title determination or appeal to the High Court or Supreme Court. Updating revenue records ensures that rights are accurately maintained,”
CJI Gavai said,
“The picture that is being painted is that once the collector conducts an inquiry, the property will cease to be a waqf property, and upon completion of the inquiry, the entire property will be taken over by the government,”
SG Mehta assured,
“We will have to go for a title suit for ownership. The determination under Section 3C is not final,”
Justice Masih asked,
“So possession continues as is unless legal recourse is taken?”
Mehta replied,
“Yes,”
CJI Gavai inquired,
“So, unless the proceedings outlined in Section 83 are resolved, there will be no eviction?”
Mehta submitted,
“Yes. Any mutawalli or aggrieved person may apply under Section 3C within the specified time. Previously, no appeal could be made, and it was a revisional jurisdiction. Now, a full appeal can be made to the High Court based on the tribunal’s decision. Earlier, it was like a revision; now it functions as a full-fledged first appeal. It is incorrect to say that the Section 3C order is final. It is subject to judicial review with multiple layers of adjudication available,”
The SG stressed that once a property is under dispute, only its waqf character is removed, not possession or other rights.
Mehta reassured,
“They are claiming that the entire adjudication of waqf is being removed. Please read the proviso. Provided that such property shall not be ‘treated’ as waqf property. The intent is that if you wish to file a civil suit, your character as waqf property is suspended so you can seek remedy. There is no wholesale capture of the waqf. The only thing Section 3C does is address revenue entries and corrections. They cannot elevate the property to waqf status until the adjudication is complete. Until it is determined whether it’s government property, how can it be transferred or encumbered? Waqf by user is preserved provided it is registered. If it is a private dispute, no one can object. Any dispute with a private individual will be resolved through judicial forums. Possession will not and cannot be taken except according to the law. Not under Section 3C or its proviso. This argument is alarming. I don’t think they have fully understood it,”
Regarding the five-year practice of Islamic faith as a condition to dedicate property as waqf, the SG stated,
“About the five-year requirement. Even the Sharia Act has Section 3, which says you must establish yourself as a Muslim. It does not mean you must pray five times a day or abstain from alcohol. Difficulties have arisen in determining whether properties are subject to waqf. There are numerous waqf properties unknown to the public where mutawallis treat them as their own.”
On the registration condition for waqf, the SG said that documentation should be provided only as far as possible.
He said,
“I am directly quoting from the section. There is a narrative claiming that for a 100-year-old property, we cannot provide documents. Let me clarify that documentation is not always required. If you claim a waqf was created over 100 years ago, you only need to provide documents for the last five years. This is not merely a formality; it has sanctity under the Act. The 1923 Act states that if you have documents, provide them; otherwise, share what you know about the origin. Now, no one can claim that someone else had to register it. It is upon them to do so. If not registered under 1923, they must do so. The narrative being constructed is misleading. It states to provide particulars as far as possible. No waqf deed is being demanded,”
Regarding the omission of waqf by user, the SG noted that this is disallowed only prospectively.
He said,
“A false narrative is being created that waqf is being taken away. This is misleading the public. Waqf by user is not allowed prospectively with three exceptions it must be registered, and there cannot be any mechanism that legitimizes a claim made by someone saying there is waqf until 2024 and it is unregistered. It would be like legitimizing what has been punitive for 102 years. The other exception pertains to government properties,”
Additionally, he emphasized that waqf by user is not a fundamental right.
The SG stated,
“Waqf by user is not a fundamental right and was recognized by statute. A right conferred by statute can always be revoked by another statute,”
Importantly, he reiterated that while waqf is an Islamic concept, it is not an essential part of Islam, and waqf boards perform secular functions.
Therefore, the inclusion of non-Muslims in the boards is permissible, he argued.
The hearing will continue on Thursday.
During the earlier hearing , petitioners claimed that the Waqf (Amendment) Act, 2025 unfairly targets the Muslim community by imposing stringent requirements for property registration as waqf, while endowments by other religious communities are not subjected to such burdensome conditions.
Senior Advocate AM Singhvi argued,
“Endowments are there in every religion. Which other religion while making a religious endowment is asked for proof of practicing that religion for 5 years or 10 years? This provision goes on short ground of violating Article 15,”
The Court also pointed out that the Waqf (Amendment) Act, 2025 has introduced significant changes concerning the consequences of non-registration of waqfs.
The Centre’s written submission argued that waqf is fundamentally a secular administrative concept and that the law should not be stayed, as it operates within the constitutional framework.
The three main issues at the center of the Centre’s plea are:
- Denotification Powers: Whether the government has the authority to denotify properties declared as waqf by court order, user practices, or deed.
- Composition of Waqf Bodies: The legitimacy of including non-Muslim members in the Central Waqf Council and State Waqf Boards, excluding ex-officio members. The petitioners argue that only Muslims should administer waqf institutions.
- Collector’s Inquiry Clause: A contentious provision that prevents properties from being classified as waqf if a collector’s inquiry determines they are government land.
The main point of the challenge is the removal of “waqf by user” from the statutory definition of waqf.
According to the petitioners, this change would strip historical mosques, graveyards, and charitable properties many of which have existed for centuries without formal waqf deeds of their religious status.
In response, the Union government argued that the Waqf (Amendment) Act, 2025 was enacted to prevent the misuse of waqf provisions that were being exploited to encroach on private and government properties.
In its written response to the petitions contesting the new law, the Centre noted that following the previous amendment to the Waqf Act in 2013, there was a 116 percent increase in “auqaf area.”
Defending the removal of the “waqf by user” concept, the Centre explained that despite a mandatory registration regime for all types of waqf since 1923, individuals and organizations had been claiming private and government lands as waqf. This not only led to the loss of valuable property rights for individuals but also resulted in unauthorized claims over public properties.
The Centre further stated that the exclusion of “waqf by user” from the definition of waqf does not limit the right to dedicate property to God; it merely regulates how such dedications are made in accordance with statutory requirements.Regarding the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Centre asserted that these changes do not infringe upon the Muslim community’s rights under Article 26. It emphasized that non-Muslim members represent a “microscopic minority” in these bodies, and their presence is intended to enhance inclusivity.
Also Read: LEGAL EXPLAINER| Waqf & The Waqf Amendment Bill 2024: Key Legal Changes & Impact
Earlier, the Supreme Court of India heard petitions against the amended Waqf Amendment Act, 2025. Petitioners argue that the law violates Article 26 of the Constitution, which protects the right to manage religious affairs.
Several individuals, political leaders, and organisations have moved the court to challenge the Waqf Amendment Act. Among the petitioners are AIMIM MP Asaduddin Owaisi, Congress MP Md Jawed, RJD MP Manoj Kumar Jha, TMC MP Mahua Moitra, and other prominent figures.
Various groups such as the All India Muslim Personal Law Board, Jamiat Ulema-i-Hind, and the Association for Protection of Civil Rights are also part of the challenge.
Political parties including the DMK, Indian Union Muslim League, YSR Congress Party, and the Communist Party of India have extended their support to the petitions.
Additionally, Delhi MLA Amanatullah Khan, SP MP Zia Ur Rehman, the Imam of Bengaluru’s Jama Masjid, and Tamil actor and TVK President Vijay have also approached the court.
On the other hand, the States of Rajasthan, Gujarat, Haryana, Maharashtra, Assam, Uttarakhand, and Chhattisgarh have filed applications to support the Waqf Amendment Act. The Central Government has submitted a caveat, requesting the court to hear its side before issuing any interim orders.
The Waqf Amendment Bill was passed after a 12-hour-long debate, securing 288 votes in favor and 232 against.
On August 8, 2024, two significant legislative proposals, namely the Waqf (Amendment) Bill, 2024, and the Mussalman Wakf (Repeal) Bill, 2024, were introduced in the Lok Sabha. These bills aim to enhance the efficiency of Waqf Board operations and ensure better management of Waqf properties across India.
President Droupadi Murmu granted her assent to the Waqf (Amendment) Bill, 2025, which was previously passed by Parliament amid intense debates in both Houses. Multiple petitions have already been filed in the apex court contesting the bill’s validity.
This amendment introduces significant reforms to the management and administration of waqf properties in India.
The Waqf Act, originally enacted in 1995, governs the administration of Muslim charitable endowments (Waqf properties) in India.
Case Title: IN RE THE WAQF (AMENDMENT) ACT, 2025| W.P.(C) No. 276/2025