Waqf boards discharge secular functions; including non-Muslims won't affect functioning: Centre to Supreme Court

The Central government on Wednesday told the Supreme Court that though waqf is an Islamic concept, it is not an essential part of Islam and waqf boards discharge secular functions. Hence, the inclusion of non-Muslims in waqf boards is permissible, it contended. .The argument was made by Central government's second senior most law officer, Solicitor General (SG) Tushar Mehta, before a Bench of Chief Justice of India (CJI) BR Gavai and Justice Augustine George Masih which was hearing a batch of pleas challenging the validity of the recently enacted Waqf (Amendment) Act, 2025.."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," the SG argued. .He also sought to distinguish between a waqf and Hindu trusts and endowment boards which do not allow non-Hindus as its members.One of the arguments made by petitioners was that when non-Hindus are not allowed in Hindu endowment boards, Muslims should not be discriminated against by allowing non-Muslims in waqf boards."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," the SG said..Hindu endowment deals with only religious activity whereas waqf deals with secular activities.Central government .BackgroundThe Lok Sabha had passed the Waqf (Amendment) Act on April 3, while the Rajya Sabha cleared it on April 4. The amendment Act received Presidential assent on April 5.The new law amended the Waqf Act of 1995 in order to address the regulation of Waqf properties which are properties dedicated exclusively for religious or charitable purposes under Islamic law.A batch of petitions were filed before the top court challenging the amendment's validity including by Congress Member of Parliament (MP) Mohammad Jawed and All India Majlis-e-Ittehadul Muslimeen (AIMIM) MP Asaduddin Owaisi. More such petitions followed in the ensuing days.The petitioners moved the Court contending that the amendment amounts to discrimination against Muslims.According to the petitioners, the amendments selectively target Muslim religious endowments and interfere with the community’s constitutionally protected right to manage its own religious affairs.Six Bhartiya Janta Party-ruled States also moved the Supreme Court in the matter, in support of the amendment. The intervention applications were filed by the States of Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh and Assam. These States primarily highlighted how they would be affected in case the constitutionality of the Amendment Act were to be tinkered with.At the core of the challenge is the removal of 'waqf by user' from the statutory definition of waqf.According to the petitioners, this omission would deprive historical mosques, graveyards and charitable properties, many of which have existed for centuries without formal waqf deeds, of their religious character.In response, the Union government has maintained that the Waqf (Amendment) Act, 2025 was brought in to curb the misuse of waqf provisions that were being misused to encroach private and government properties. In a written response to the petitions challenging the new law, the Centre said after the previous amendment to the Waqf Act in 2013, there was a 116 per cent rise in "auqaf area".Defending the abolition of the concept of 'waqf by user', the Centre said despite there being a regime of mandatory registration for all kinds of waqf since 1923, individuals or organisations used to claim private lands and government lands as waqf "which not only lead to deprivation of valuable property rights of individual citizens but similarly unauthorized claims over public properties."The Centre also said that the exclusion of "waqf by user" from the definition of waqf does not curtail the right to dedicate property to God, but merely regulates the form of dedication in keeping with statutory requirements.On the objections regarding the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Centre said that the changes in the composition of these bodies do not impair the Muslim community’s rights under Article 26, it has stated. The addition of non-Muslim members are in a "microscopic minority" in the Council and Boards and their presence is meant to give inclusivity to the bodies, it was submitted.On April 17, the Central government had assured the Court that it would not enforce several key provisions of the Act for the time being. The Court had recorded this assurance and decided not to order any express stay.Former Chief Justice of India Sanjiv Khanna earlier recused himself for hearing the petitions and referred it to a bench led by current CJI BR Gavai which is now hearing the case. .During yesterday's hearing, the petitioner's had alleged that the Waqf (Amendment) Act, 2025 has singled out the Muslim community by imposing unfair requirements on them for registration of properties as waqf while endowments made by other religious communities are not subject to such onerous conditions."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," Senior Advocate AM Singhvi had argued.During the hearing, the Court too flagged the fact that the Waqf (Amendment) Act, 2025 has introduced drastic changes as regards the consequences when it comes to non-registration of waqfs.Hearing today.Solicitor General Tushar Mehta, appearing for the Central government, pointed out that many of the petitions before the Court are in the nature of public interest litigation and are not filed by affected individuals."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 said..He claimed that the law was fine tuned after extensive deliberations with the JPC."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," he contended.He explained how the present law improves upon the earlier law when it comes to the creation of waqf."1923 Act said waqf can be created by waqf by user. 1955 Act also said the same. Then in November 2013, just before elections, the inclusion was - not Muslim, but any person can create a Waqf. (Under current law), he has to be Muslim. He has to practice Islam for 5 years. And he can create Waqf only on his own property and not on somebody else’s property to eradicate the menace of private or government property," the SG said..He also rebutted the argument that the government officer will be deciding the dispute over waqf property, including title."Government holds the land in trust for all the citizens. Waqf by user, by definition, the property belongs to someone else. You have acquired the right by continuous usage. Therefore, necessarily, either private or government property is used for a long period of time. If there is a building which may be a government property - can the government not examine whether the property belongs to the government? That is provided for in Section 3C," he said."Their contention is that in this case, the government will decide its own claim," CJI Gavai stated. "The revenue authorities decide whether it is government land or not. But it is only for the purpose of revenue records. They cannot decide on the title. It is not final. Initial Bill said that the collector will decide. The objection raised was collector will be a judge in his own case. So it was suggested by JPC that let somebody else, apart from the collector, be the designated officer. The only consequence of the exercise undertaken by the officer under Section 3C will be limited to correction of revenue records and board records. I have said this on affidavit. But nobody brought this to notice," Mehta argued."So it will just be a paper entry?" the CJI queried. "It will be a paper entry. But if government wants ownership it will have to file a suit for title. If anyone is dealing with trust property, he will know as per revenue record that government is the owner and not the waqf. There is no denial of access to justice under Section 3C. It will be open for the affected party 'at any stage' to approach the Waqf tribunal under Section 83 which will make the final title or on appeal by the High Court or the Supreme Court. Updating of revenue records only ensures that the records of rights is accurately maintained," Mehta underlined.."The picture that is being painted is that once the collector conducts enquiry, the property will cease to be a waqf property, and once enquiry is complete, the entire property will be taken over by the government," CJI Gavai said. "We will have to go for title suit for ownership. The determination under Section 3C is not final," SG Mehta assured."So possession continues as is unless recourse in law is taken?" Justice Masih asked. "Yes," Mehta replied."So, unless the proceedings provided in Section 83 are taken to a logical end, there will be no eviction?" CJI Gavai asked. "Yes. Please see. Any muttwali person or any person aggrieved by an order under Section 3C may make an application within the time specified in the Act. Earlier, it was no appeal would lie and it was a revisional jurisdiction. Now it’s that a full appeal can lie to the High Court on the decision of the tribunal. Earlier, it was like a revision. Now it is like a full fledged first appeal. Against which intra court appeal also lies or SLP. It is absolutely wrong to say that Section 3C order is final. It is subject to judicial review with layers of judicial adjudication available," Mehta submitted. The SG underscored that once a property comes into dispute only the waqf character is taken away and not the possession or other rights with respect to the property."They are saying the entire adjudication of Waqf is taken away. Please read the proviso. Provided that such property shall not be 'treated' as Waqf property. The purpose is - 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. Only thing Section 3C has done is decide revenue entries, correction etc. That embargo is treated as a character. They cannot elevate the property as a Waqf property unless the adjudication is over. till it is decided whether it’s a government property or not how can it be transferred or encumbered? Pay waqf by user are saved provided they are registered. If it is a private dispute obviously no one can object. Any dispute with private individual will be determined by outcome of the judicial forum. Possession will not and cannot be taken over except with accordance with law. Not under 3C or proviso to 3C. This was an alarming argument. I don’t think they have also understood it," Mehta reassured..On the aspect of five years of practice of Islamic faith as a condition to dedicate a property as waqf, the SG said,"About the 5 years aspect. Even Sharia Act has section 3 which says you have to establish yourself as a Muslim. It does not mean you have to offer namaz 5 times a day or not drink wine etc. in some cases difficulties have arisen whether properties are subject to Waqf or not. There are numerous Waqf properties unknown to the public where mutawallis are dealing it as their own property. There should be some designated person who should go about and see if the properties declared as Waqf are being treated as Waqf property.".On the condition to register waqf, SG said that documents and particulars need to be furnished only as far as possible."I am directly reading from the section. There is a campaign going on that for 100-year-old property hum kagaz kahan se laayenge. Let me know that kaagaz kabhi zaruri nahi the. This is a narrative being made. if you say Waqf was created before 100 years then you provide documents for only last 5 years. It was not just a mere formality. There was a sanctity attached by the Act. 1923 act says if you have document you provide otherwise provide whatever you know about the origin. Now no one can say someone else had to register. Its upon them to do so. If not registered under 1923.. then it is incumbent upon them to do so .. the narrative built is where are the documents... It says provide particular so far as possible. Please see the word. No waqf deed etc being asked for," he said. .On omission of waqf by user, the SG said that the same is disallowed only prospectively."Now a false narrative is being made that waqf is being snatched. This is nothing but the country being misled. Waqf by user is not allowed prospectively with three exceptions - it should be registered. There cannot be any mechanism just because someone gets up and says there is waqf till 2024 and not registered. It will be like legitimising what was punitive since 102 years.. and the other exception is for govt properties," he said.Further, waqf by user is not a fundamental right, he underlined."Waqf by user is not a fundamental right and was recognised by a statute. Judgment said if a right is conferred by statute. Tight can always be taken away by a statute," the SG stated.Pertinently, he stated that though waqf is an Islamic concept, it is not an essential part of Islam and waqf boards discharge secular functions. Hence, inclusion of non-Muslims in the boards is permissible, he contended.The hearing will continue on Thursday..[Read Live Coverage]