The center on Wednesday defended the Waqf (Amendment) Act, 2025 in the Supreme Court and said though waqf was an Islamic concept, it was not an essential part of Islam.
Arguing before Chief Justice B R Gavai and Justice Augustine George Masih, Solicitor General Tushar Mehta said, "Waqf is an Islamic concept. But it is not an essential part of Islam.. Waqf is nothing but just charity in Islam." "Charity is recognised in every religion, and it cannot be regarded as an essential tenet of any religion," he said. Earlier in the day, Mehta asserted nobody could claim right over public land by using waqf by user principle which was a statutory right and the law could take it away.
"Waqf by user" refers to a concept where a property is recognised as waqf based on its long-term use for religious or charitable purposes, even without formal documentation.
Responding to the challenge against the validity of the 2025 law, Mehta argued the amended law dealt with the secular aspects of waqf and activities that were non-essential to Islam.
Mehta said the "waqf by user" concept did not permit “wholesale takeover of waqf properties” by the state as alleged.
“Waqf by user is not a fundamental right, it is a creature of statute, and what the legislature creates, it can also take away,” he said.
Any stay of the provision on abolition of unregistered "waqf by user" properties would defeat the purpose of the law which has been enacted to remedy the mischief like usurpation of government land, Mehta added.
“The Centre is the custodian of properties on behalf of 14 crore citizens,” he said, “and nobody has the right over government land.” Mehta said, “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.” Contesting the argument of government officers arbitrarily claiming land as government property from now on and override waqf status, he called it “misleading and false.” On the point of an officer above the rank of a district collector deciding the dispute on the claim over an alleged waqf property, he said officer wouldn't finally determine the property's ownership.
Mehta said the eviction or takeover of property could only occur after due process through the Waqf Tribunal proceedings (under Section 83) and subsequent appeals.
The possession would continue with the waqf until the issue was fully adjudicated, he said.
The SG cited the extensive deliberations of the Joint Parliamentary Committee, which held 96 sittings, received 97 lakh representations, and incorporated feedback from 25 Waqf Boards and several state governments.
He said the bill was not rushed or passed mechanically but involved thorough clause-by-clause scrutiny.
“There has been an unprecedented level of consultation. It's not the case that this was done behind closed doors. Many of the suggestions made by stakeholders were either incorporated or reasonably rejected,” Mehta added.
The law officer also drew bench's attention to the "historic misuse" of waqf by user to claim ownership of public or private lands without documentation.
“This menace has existed since 1923. The first legislation dealing with waqf property was introduced then to curb this very issue,” he said.
On the question whether the law infringed upon Articles 25 and 26 (freedom of religion and management of religious affairs) of the Constitution, he said though waqf was an Islamic concept, it did not constitute an essential religious practice.
Unlike Hindu, Jain religious trusts which deal with religious aspects, temples, priests and their management, waqf may include schools, colleges, etc., Mehta said.
Doctrine of essential religious practices, he added, as articulated by Dr B R Ambedkar must be satisfied before any constitutional protection under Article 25 can be claimed.
“Unless it is shown that waqf is an essential part of Islam, the rest of the arguments cannot succeed,” Mehta said.
The Centre opposed the claim that the law enabled mass takeover of waqf properties.
“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.
Referring to case laws, he said the government could protect public lands even if erroneously entered as waqf, and that mere entry in the waqf register did not confer ownership.
Mehta said no affected parties moved the court and “it is nobody's case that Parliament does not have the competence to pass this legislation".
He said the amended law did not allow waqf by user prospectively.
On the issue over non-Muslims being appointed in the Central Waqf Council and the state waqf boards, he said in the CWC a maximum of four non-Muslims of the total 22 members were allowed.
In state boards, of the total 11 members, a maximum of three non-Muslim members -- except if the ex-officio members was non Muslim then two non-Muslims—could be appointed.
“Non-Muslims can also be aggrieved or affected or beneficiary and this is the reason that non-Muslims have been included,” he said.
The hearing would continue on Thursday.
