New Delhi, May 21 (UNI) The Supreme Court on Wednesday continued hearing a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025, with Solicitor General (SG) Tushar Mehta defending the Central government’s stance before a bench of Chief Justice of India (CJI) B R Gavai and Justice Augustine George Masih.
Mehta asserted that waqf, though rooted in Islamic tradition, is not an essential religious practice under Islam, and that waqf boards perform secular administrative functions.
Therefore, he argued, the inclusion of non-Muslims in such boards is permissible and constitutional.
“Waqf is an Islamic concept. But it is not an essential part of Islam. Charity exists in every religion, including Hinduism and Christianity, but the Supreme Court has ruled that charity is not an essential religious practice.
Similarly, managing waqf properties, ensuring proper accounts and audits, all are secular in nature,” Mehta submitted.
He further clarified that having a maximum of two non-Muslim members on waqf boards does not affect the religious character of waqf, since these boards do not interfere with religious activities.
The petitions, including those filed by Congress MP Mohammad Jawed and AIMIM MP Asaduddin Owaisi, challenge the amendment on the grounds that it violates the Muslim community’s right under Article 26 to manage its religious affairs.
They allege that the amendment selectively targets Muslim religious endowments and unfairly imposes stringent registration requirements.
The Waqf (Amendment) Act, 2025, passed by the Lok Sabha on April 3 and Rajya Sabha on April 4 and signed by the President on April 5, removed the concept of “waqf by user”, which allowed properties long used for religious purposes to be treated as waqf without formal documentation.
According to the petitioners, this change may strip historical mosques, graveyards, and charitable institutions of their religious status if they lack formal waqf deeds.
Responding to concerns about misuse of the waqf law, Mehta stated that there had been a 116% rise in auqaf land following the 2013 amendment, suggesting widespread misuse of waqf claims on private and public lands.
He emphasized that the removal of “waqf by user” seeks to regulate religious endowments through proper documentation and that the right to dedicate property to God remains intact.
“Claims were made on private and government lands as waqf, depriving citizens of property rights. The law does not deny the right to create waqf but insists on fulfilling legal formalities,” he said.
The hearing also focused on Section 3C, which empowers a designated officer to determine whether a property is government land.
The SG clarified that such determinations are not final and are subject to judicial review.
“This is only for correcting revenue and board records. If the government wants ownership, it has to file a title suit. Possession will remain unaffected until a proper legal process is followed,” Mehta assured the court.
He added that orders under Section 3C can be challenged before the Waqf Tribunal, followed by appeals to the High Court or even the Supreme Court, ensuring a multi-layered judicial remedy.
Refuting the claim that Muslims are being treated unfairly compared to Hindu endowments, Mehta said, “Hindu endowments deal purely with religious activities. Hindu endowment commissioners can enter temples and even appoint pujaris. Waqf boards do not control religious activities, their role is purely secular.”
Addressing the requirement for a person to have practiced Islam for five years before creating a waqf, Mehta stated that this is not an arbitrary rule but is consistent with principles under the Sharia Act to ensure genuine religious intent behind the dedication.
“It doesn’t mean one has to offer namaz five times daily. It’s a safeguard to prevent fraudulent declarations of waqf,” he said.
Dismissing fears about having to produce 100-year-old documents to register waqf properties, the SG clarified that only the last five years of documents are required, and only “as far as possible”.
“There is a campaign spreading misinformation. The law doesn’t demand impossibilities. Historical waqf properties can still be registered with recent records,” he said.
CJI Gavai noted the pervasive impact of the amendment and its significant changes to the registration process for waqf properties.
The court had earlier recorded the Centre’s assurance that several provisions of the new law would not be enforced for now.
The hearing will continue on Thursday, with more arguments expected from the petitioners and intervenors, including six BJP-ruled states, Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh, and Assam, which have supported the amendment, citing administrative implications.
