Asserting that the Waqf (Amendment) Act, 2025 “stands on firm Constitutional ground,” the Centre has told the Supreme Court that the newly enacted law “respects 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”. In its preliminary counter-affidavit filed Thursday, while opposing an interim stay on provisions of the Act, the Centre said the law’s “legislative design…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”. On old “Waqf by user” properties that lack documentary proof, given that the proviso to Section 3[1][r] of the latest Act only protects those that are registered before the amendments came into force on April 8, the Centre said while registration has been mandatory since the Mussalman Wakf Act of 1923, “no trust, deed or any documentary proof has been insisted upon in the amendment or even prior thereto”.
Story continues below this ad “The only mandatory requirement for being protected under the proviso is that such ‘waqf by user’ should be registered as on 08.04.2025 since the registration has always been mandatory as per the statute governing waqfs since last 100 years,” it said, adding that “waqfs by user registered before the amendment would therefore continue to be treated as waqf in terms of the proviso”. Backing the prospective operation, the Centre said “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 that “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”.
Pointing out that non-registration drew a penalty even in earlier forms of the Act, the Government said “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”. The Government also said that “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 Hon’ble Court”.
Story continues below this ad According to the Centre, “the legislative intent and policy has always been very clear with regard to waqf being registered so that it remains under the statutory regime with respect to its secular aspects like maintenance of accounts, survey of properties, transparent administration, and supervision in case of transfer of property of waqf”. The Government said the new law “has been introduced in order to ensure that establishment of waqfs can be properly documented” and that “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”. The Centre said “any interim order” staying the provision “will not only cause public mischief but will also harm Muslims as well who are supporting the amendment”.
Responding to another contentious aspect in the Act, related to the provision for inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Government sought to draw a distinction between the religious and secular aspects of waqf. Story continues below this ad It said “waqfs, by its very nature, can be for non-religious purposes also”, citing orphanages, hospitals and health care facilities, educational institutions, scholarships, and support of the poor and needy. “In the emerging world scenario, various innovative forms of waqfs have also emerged such as Cash Waqfs, Corporate Waqfs and Waqfs Sukuk [Islamic bonds].
The concept of waqf, therefore, is distinguishable from mere religious denominations or places of worship,” it said. The “Waqf Act, 1995 in general and the amendments made in 2025 in particular merely deals with supervising of administration and secular aspects of waqf and waqf properties which would become clear from the architecture of the Act,” it said. The “Waqf Council is not undertaking any “affairs of religion” but is merely an advisory body to advise the Central Government, the State Governments and the Boards on matters concerned to the working of Boards and due administration of Awqaf.
It merely exercises superintendence over the functioning of waqfs [which will be administered and managed by Muslims or anyone as desired by Waqif],” the Government told the court. The Government said while “Hindu endowments or other endowments and enactments… concern only the respective community with little to no interaction of the said endowments with members of other communities… the wide nature of waqf ensures that its creation, management, regulation and maintenance results in interactions with members of other communities apart from Muslims.” Story continues below this ad The affidavit added that “in such a scenario, comparing Waqf Boards with Commissioners/ Boards under State laws concerning Hindu endowments would not be an apt comparison. The nature of waqf is sui generis and requires a suitably tailored approach”.
The Centre also pointed out that the Act does not interfere with religious aspects and “the mutawalli who is the actual manager of the waqf remain a religious person”. It added that the petitioners “have confused the regulatory Boards under the Act with managers of properties…the Boards do not have any managerial powers over the waqfs created and neither can it be stated that the waqfs created vest in the Boards in any manner”. The affidavit said “managing the large number of waqf properties across the country — which include land, buildings, and financial assets dedicated to charitable and religious causes — involves significant secular activities: maintaining accurate records, preventing misappropriation, resolving disputes, and ensuring that the income is used for the intended charitable purposes such as education, healthcare, and assistance to the needy”.
“Further, such properties often deal with rights of people of other communities and their claims to some such properties. The regulation of such properties therefore may have a public order aspect as well. In any event, it is submitted that regulatory powers of the State clearly keep the essential religious practices, as recognised by this Hon’ble Court, untouched,” the affidavit stated.
Story continues below this ad On the Act saying that no government property can be declared as waqf, the affidavit said, “…it has been consistently found over a period of time and documented at various levels that government properties and even private properties are declared as waqf properties…there are startling examples… this is done under the old regime wherein adequate safeguards were absent.” It added that “in a secular Constitution, where government properties are now accorded the status of being held in public trust, to suggest that a beneficial legislation that confers validity on religious dedications should give primacy to such alleged dedications and their administration over property held in trust by the governments for the benefit of the citizens of the country, is utterly misconceived”. Further, the Government said “the rationale for these” new “provisions arises 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”. On the 2025 Act allowing Muslims to set up trusts for charitable purposes outside the purview of the Waqf Act, the Centre said this “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.”
