Centre defends Waqf Act in Supreme Court

In a 1,332-page preliminary counter affidavit, the government defended the contentious law saying that 'shockingly' after 2013, there were an addition of over 20 lakh hectare (precisely 20,92,072.536) in waqf land.

New Delhi: The Centre has told the Supreme Court 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.

Stoutly defending the Waqf (Amendment), 2025, the Ministry Affairs Ministry, by an affidavit, also maintained change in the composition of the Central Waqf Council and the State Waqf Boards does not violate Article 26 of the Constitution, as minimum 18 out of 22 in Central Waqf Council and minimum 8 out of 11 in Waqf Boards would remain Muslims members.

"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 of the Constitution," it said. 

On April 17, acting on a batch of petitions, the Supreme Court had made the Union government to assure that no appointment to the Central Waqf Council and State Waqf board would be made and the waqf properties declared or registered as waqf by users would not be denotified till May 5, 2025.

In its 1332-page response to the challenge to the amendment, the government said, 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, it said.

"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, as the administration of waqf properties is essentially a secular function.

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 also 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 ‘Waqf by user’, which are registered, will have no effect and will continue," it said.

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.

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 emphasised 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 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.