NEW DELHI: The Centre has told the Supreme Court the Waqf (Amendment) Act, 2025 clearly stands on firm constitutional ground and does not violate any of the fundamental rights as it respects the essential religious practices of the Muslim community by leaving matters of faith and worship untouched, while legitimately regulating the secular, administrative facets of waqf management as authorised by the Constitution.
The 2025 Act is a valid and lawful exercise of legislative power. The reforms introduced served compelling objectives of transparency, accountability, social welfare and inclusive governance, in harmony with the values of the Constitution and the public interest, it said.
In an affidavit, the Union government stated that the act of creating a waqf (endowing property for religious or charitable purposes) is indeed a practice encouraged in Islam; however, the manner in which waqf properties are administered, accounted for, or supervised is not a matter of religious doctrine but rather a matter of secular management.
The government said Article 26 guarantees to every religious denomination the right to manage its own affairs in matters of religion, establish and maintain institutions, own property, and administer such property. However, these rights are not absolute and unqualified as the Constitution itself contains explicit clauses recognising the State’s power to regulate or restrict non-essential, secular aspects of religious practice.
Defending the amendment, the government said that the special provisions to protect government land in the amendment are neither arbitrary nor exclusionary, but a well-considered legislative measure to prevent abuse and preserve the integrity of public property.
The Centre said the rationale for the provisions arose from repeated and documented instances across the country where Waqf Boards had claimed title over government land, public utilities, and protected monuments without deed, survey, or adjudication—relying solely on Board’s unilateral records. The said claims included, inter alia, waqf claims over Collector’s offices, government schools, ASI-protected heritage sites, and land vested in State or municipal authorities.
"There are several 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," it said.
The government also maintained change in the composition of the Central Waqf Council and the State Waqf Boards does not violate Article 26, as minimum 18 out of 22 in Central Waqf Council and minimum 8 out of 11 in Waqf Boards would remain Muslims members.
The presence of non-Muslims in the Waqf Board does not infringe Article 26. It is reiterated that administration of waqf properties is not a “religious” function protected under Article 26. In fact, this would fall in the category of secular functions which are amenable to legislation.
"Since Muslims are located the world over and in the present economic world scenario where there is evolution even in waqf systems across the world, there is nothing arbitrary if the competent Legislature permits non-Muslims to participate for effective administration of waqfs and thereby modernize the way in which waqfs are governed in India to keep pace with waqfs in other part of the world," it said.
The government said the Council and the Boards are not responsible for the performance of the religious functions associated with the waqf property. The administration of waqf properties is essentially a secular function.
By removing major legal issues, the amendment reaffirms that identification, classification, and regulation of waqf property must be subject to legal standards and judicial oversight. The legislative design of the 2025 Act ensures that no person is denied access to courts, and that the decisions affecting property rights, religious freedom, and public charity are made within the bounds of fairness and legality. Through these changes, the amendment brings judicial accountability, transparency, and fairness, the government maintained.
The government maintained the attempt of the various petitioners to challenge the constitutional validity of the various clauses of the amendment 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, that amounts to treating the law as unconstitutional at an interim stage and which is impermissible.
It also said amendment to Section 2 of the Waqf Act, 1995, as introduced by the Waqf (Amendment) Act, 2025, marks a transformative legislative step in affirming the constitutional rights of individuals professing Islam in India to exercise freedom of religion, conscience, and association, by broadening the legal avenues through which charitable dedications may be made.
Mandating Muslim citizens of India to limit themselves to doing charity or serving their religion only through the medium of Waqf is neither desirable nor constitutional. A Muslim citizen of a secular nation can always choose to create either a private trust or a public charitable trust and choose to be governed by different legislations governing trusts. This proviso takes care of protection of the said fundamental rights of all Muslims, it said.
The government claimed the Waqf (Amendment) Act, 2025 in no manner whatsoever seek to transfer ownership or administration of waqf assets to the government nor does it dictate that waqf properties be used for secular purposes. It merely regulates the management of those assets to ensure they are effectively used for the very religious and charitable purposes for which they were endowed.
"The Waqf (Amendment) Act, 2025 is a textbook example of legislation that falls within the authorization of Article 26 and the protective clause of Article 25," it said.
The primary religious right being the right to make a dedication is not interfered with and the neither is administration of any specific waqf interfered with as the same continues to be vested with the mutawalli as per the purpose behind such waqf, it said.
The government also said there have been reported misuse of waqf provisions to encroach private properties and the government properties.
"It is really shocking to know that after the amendment brought in the year 2013, there is 116% rise in auqaf area. Right before even Mughal era, pre independence era and post-independence era, the total of wakfs created was 18,29,163.896 acres of land in India. Shockingly after 2013, the addition of wakf land is 20,92,072.536 acres," it said.
In other words, even the first legislation in 1913 is considered, to be the first regulatory measure, 18 lakh acres was occupied by waqf till 2013 i.e. in 100 years [and more if we count pre-1913 era also]. Only between 2013-2024, a phenomenal increase is found and the figure of 20 lakh acres is additional and not the total figure. The total comes to 3921236.459 acres of land. The increase in waqf properties by 116% itself called for a serious look at statutory architecture of the 1995 Act, it said.
The government also pointed out, despite there being a regime of mandatory registration of all kinds of waqf including ‘waqf by user’ making registration mandatory almost since a century i.e. since 1923, individuals or organizations used to claim private lands and government lands as waqf including under ‘waqf by user’ which not only lead to deprivation of valuable property rights of individual citizens but similarly unauthorized claims over public properties.
"Waqf by user provision was also criticized by the stakeholders since it allowed properties belonging to government to be wrongfully claimed as waqf," it said.
Taking away the statutory protection to a waqf by user does not deprive a person of the Muslim community to create a waqf. It impinges on the form by which such a dedication is to be made, which is the secular dimension of the dedication, and not the right of an individual to dedicate his or her property to God. The concept of ‘waqf by user’ was in vogue during the period where the writing or executing deeds for anything was a rare phenomenon, it said.
The government claimed, a deliberate, purposeful and intentionally misleading narrative is built very mischievously giving an impression that those waqfs [including ‘waqf by user’] which do not have documents to support their claims will be affected.
"This is not only untrue and false but purposefully and deliberately misleading this court," it said.
The only mandatory requirement for being protected under the proviso is that such ‘waqf by user’ should be registered as on April 08, 2025 since the registration has always been mandatory as per the statute governing waqfs since last 100 years. Those, who deliberately evaded or avoided to get ‘waqf by user’ registered [despite non-registration being punitive under the statute] cannot claim the benefits of the proviso.
Despite having mandatory registration of all Waqfs including “Waqf by user” right from 1923, the menace of deliberate non registration continued as several waqfs did not wish to come under the statutory regulatory mechanism, it said.
The government also said when the country has entered into a completely different era in 2025, no one can still insist for ‘oral’ creation of waqf when no other document (sale deed, gift deed, will etc.) is permitted without written form.
It said this change has been introduced in order to ensure that establishment of waqfs can be properly documented. It is submiLed that requiring a valid waqf deed would also serve to reduce disputes as to whether a particular property is a waqf property or not and at least after 2025, nobody can say from where they can be expected to produce documents.
It is thus clear that arguments challenging the deletion of ‘Waqf by user’ in the amending Act is unsustainable and purposefully misleading since – (i) ‘Waqf by user’ [which are registered] will have no effect and will continue; (ii) It is not open for anyone to rationally, logically, honestly and statutorily say that we could not get ‘Waqf by user’ registered because we did not have waqf deed since it has never been requirement for registration of ‘Waqf by user’, the government said.
