Waqf Is Not an Essential Religious Practice, Argues Centre in Supreme Court

May 21, 2025

Centre Argues Waqf Is Charitable, Not an Essential Part of Islam

During the ongoing constitutional challenge to the Waqf (Amendment) Act, 2025, the Central Government on Wednesday submitted to the Supreme Court of India that the concept of Waqf—though rooted in Islamic tradition—does not constitute an essential religious practice under Islam.

Appearing for the Union of India, Solicitor General Tushar Mehta addressed a bench comprising Chief Justice of India B.R. Gavai and Justice Augustine George Masih, stating:

“Waqf is an Islamic concept. But it is not an essential part of Islam. Waqf is nothing but charity in Islam, and charity exists in every religion.”

Waqf Boards Discharge Secular, Not Religious, Functions

The Solicitor General emphasized that Waqf Boards perform only secular functions such as:

Property management
Register maintenance
Auditing of accounts

He argued that the administration of religious property falls under secular regulatory power of the state and does not amount to interference in religious practices. According to Mehta, this justifies inclusion of non-Muslim members in Waqf Boards and Councils, since these roles pertain to administrative oversight and governance, not spiritual or religious rituals.

Justification for Inclusion of Non-Muslims in Waqf Board

The Centre defended the nomination of non-Muslims to the Central and State Waqf Boards. Mehta asserted that this move promotes diversity and improves secular governance. He added:

“Having two non-Muslims on the Board will not affect any religious practice.”

This position is in stark contrast to criticisms raised by petitioners, who argue that inclusion of non-Muslims undermines the religious autonomy of the Muslim community.

Allegations of Misuse Under ‘Waqf-by-User’

The Centre also raised serious concerns about the alleged misuse of the Waqf-by-user doctrine. Mehta stated that in several parts of the country, government lands were being illegitimately claimed as Waqf properties on the basis of user.

To address this issue, the 2025 Amendment Act abolished the Waqf-by-user concept prospectively, clarifying that:

Existing registered Waqfs would not be affected.
Future claims must be registered and documented to gain recognition.
Waqf-by-user is not a fundamental right, and its regulation does not amount to violation of Article 25 or 26 of the Constitution.

Protecting Women’s Rights Through Waqf-Alal-Aulad

Another important feature of the Waqf (Amendment) Act, 2025, highlighted by the Centre, is the recognition of female inheritance rights under the doctrine of Waqf-Alal-Aulad. Mehta noted that the law now ensures:

Female heirs receive their legal share before the endowment is formally dedicated as a Waqf.
This helps prevent the exclusion of women from property rights in family-based religious endowments.

Petitions Allege Discrimination and Rights Violation

Despite the Centre’s defense, multiple petitions have challenged the constitutional validity of the Waqf (Amendment) Act, 2025, alleging that:

The law discriminates against the Muslim community.
It violates fundamental rights under Articles 14, 25, and 26 of the Constitution.
It enables the government to exercise control over religious properties and institutions without judicial safeguards.

Notably, six BJP-ruled states have supported the Act in the Supreme Court, citing the need for reform and accountability.

Legislative Process and Centre’s Stand

The Waqf (Amendment) Bill, 2025, was passed by Parliament after intense debate and was signed into law by President Droupadi Murmu on April 5, 2025. The Centre’s affidavit in the Supreme Court states that:

The law was enacted after nationwide stakeholder consultations, including inputs from various Waqf administrators.
The amendments are focused solely on the secular administration of Waqf properties and do not infringe upon religious freedoms.
As a matter of legal principle, constitutional courts should not stay statutory provisions, either directly or indirectly, unless the statute is prima facie unconstitutional.

Supreme Court Hearings Continue

The Supreme Court is currently considering interim relief and evaluating whether to stay any provisions of the Act during the pendency of the case. The matter remains sub judice, with further hearings scheduled.

Conclusion

The case poses important constitutional questions on the intersection of religion, state power, and property rights. At its core lies a debate over whether the state can regulate religious institutions for administrative purposes without violating the right to religious freedom. The final outcome will likely have far-reaching implications for not only Waqf governance but also for minority rights and secularism in India.