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The Union government on Friday told the Supreme Court that the Waqf Amendment Act, 2025 did not infringe the religious freedoms guaranteed by the Constitution as it confined itself to secular dimensions such as record management, procedural reforms and administrative structure.
In a preliminary affidavit filed before the Apex Court in response to the petitions challenging the 2025 Act, the Ministry of Minority Affairs submitted that the amendments were only meant for the regulation of the secular aspect regarding the management of the properties and hence, there was no violation of religious freedoms guaranteed under Articles 25 and 26 of the Constitution.
Noting that the 2025 Act squarely fell within the permissible regulatory power of the State, the Central government said the law clearly limited itself to non-essential practices and did not interfere with the matters of prayer, ritual or fundamental Islamic obligations. The Act also did not violate the fundamental rights guaranteed under the Constitution.
It said the Waqf Act, 1995 conferred the recognition of waqfs as a valid statutory dedication of property, which continued to protect the religious rights of a Muslim individual or a community in general, and remained unchanged till date.
The secular provisions of proving such a dedication and the management of such properties, including preventing their waste or misuse, were permissible under the constitutional framework, it added.
The affidavit submitted that the omission of ‘waqf-by-user’ would not affect the existing waqf lands, which were already registered.
The Centre asserted that a false narrative was being created that this omission would impact the centuries-old waqf lands, which did not have specific deeds.
As per the proviso to Section 3(1)(r), there was no need to produce any document to get the recognition for existing ‘waqf-by-user’ lands. The only condition was that they must have been registered by April 8, 2025 (the date of notification of the Act).
The registration of waqf lands, however, was not a new condition. This requirement was already there for 100 years, ever since the enactment of the Mussalman Wakf Act, 1923. A similar mandate was there in the Waqf Act of 1954 and 1995, it pointed out.
Despite the existence of ‘waqf by user’ concept, the requirement of registration or self-declarations before the Court was made mandatory to ensure that regulatory provisions of the enactments achieved the intended objectives. This clear and mandatory legislative regime sought to enforce and implement the registration requirements on all kinds of waqfs since at least 1923, it added.
The Centre said it was too late in the day for anyone to claim that although it claimed to be a genuine waqf, it was yet not registered till today.
Regarding the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Union of India said that the Central Waqf Council played only a general advisory role and did not deal with any specific land.
Taking the view the fact that the Waqf Board was a secular body and not a representative body of Muslims, the Ministry said the State Board exercised secular regulatory powers and judicial pronouncements.
Noting that Article 26 did not confer the right to administer a property as per the tenets of a religion, the affidavit contended that the changes did not impact the religious rights of Muslims in any manner.
The changes would not make the Muslims a minority in these bodies. The maximum number of non-Muslims in the Central Council was four (out of 22 members) and three in Boards (out of 11 members), assuming the ex-officio members were also non-Muslims.
During the course of hearing, the Apex Court asked whether the Muslims could be included in the Hindu boards. The Ministry said that Waqf was a wider and ever-evolving concept, as compared to Hindu religious endowments. All States of the country did not have laws dealing with Hindu religious endowments. In many states, they were dealt with by general laws applicable to trusts.
Since Waqf Boards often exercised jurisdiction over properties belonging to non-Muslims, the presence of non-Muslims in the Boards would balance the constitutional equities on both sides, it added.
Regarding the inclusion of a government officer to decide whether a Waqf land encroached upon was a government land, the Ministry said there were startling examples, whereby Government lands or even private lands were declared as waqf properties.
Since Government lands were held in public trust, the legislature could provide a mechanism to protect them and adjudicate the disputes pertaining to the same.
It said the rationale for these provisions arose from repeated and documented instances across the country, wherein Waqf Boards had claimed title over government land, public utilities and even protected monuments without any deed, survey, or adjudication, relying solely on the Board’s unilateral records.
These included, inter alia, waqf claims over Collector’s offices, government schools, ASI-protected heritage sites and land vested in State or municipal authorities, it added.
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