Waqf Islamic concept but not essential to Islam: Centre to Supreme Court

Earlier in the day, Mehta asserted nobody could claim right over public land by using waqf by user principle which was a statutory right and the law could take it away.

New Delhi: Strongly defending the Waqf (Amendment) Act, 2025, Solicitor General Tushar Mehta submitted before a bench of Chief Justice of India B R Gavai and Justice Augustine George Masih that waqf is nothing but just charity in Islam.

He said that charity is recognised in every religion, and it cannot be regarded as an essential tenet of any religion.

The Centre notified the Waqf Act, 2025 after it got President Droupadi Murmu's assent on April 5.

The court was hearing petitions challenging the Waqf Amendment Act, 2025.

To the petitioners' objection to inclusion of non-Muslim members in Waqf bodies, Mehta contended that waqf is for charity and a waqf board only discharges secular functions.

"Having two non-Muslims, what will it change? It is not touching any religious activity," he said.

Mehta said waqf is not a fundamental right and it was the state's duty to ensure that public property is not diverted illegally.

He contended that a false narrative has been created that they will have to provide documents, or waqf is captured en masse.

Mehta contended that judgments show that charity is part of every religion, Hindus have a system of daan, Sikhs also have it and it is also for Christianity.

A note by the Centre said creating a waqf is not mandatory in Islam like many other practices and, therefore, it is not an essential religious practice in any case.

"Waqf, unlike Hindu religious institutions, can be for non-religious purposes also, like hospitals, schools, orphanages, madrasas, etc. There cannot be a blanket right to dedicate movable or immovable property as part of Article 25 and 26, and never has such an absolute right been recognised by the hon’ble courts as an essential religious practice," it said.

The Centre contended that the dedication of any property for religious, charitable or pious purpose, in its entirety, cannot be an essential religious practice.

"Thus, a category of ‘waqf by user’ can always be de-recognised prospectively by the competent legislature," the note said.

The note submitted that Article 26 does not confer an absolute right to administer a property in accordance with the tenets of religion.

Mehta referred to the report of the joint parliamentary committee and informed the bench that many state governments and state waqf boards were consulted before the law came into being.

The bench sought response from the Centre on petitioners’ contention that an officer above the rank of the district collector can decide the claim over waqf properties on the grounds that they are of government.

"This is not just misleading but a false argument," Mehta said.

The Centre has said that 'waqf by user' means the property belongs to someone else and one has acquired the right by continuous usage.

Mehta asked if a building, which may be government property, can not be examined by the government whether the property belongs to the government or not.

The petitioners’ have vehemently argued that the government cannot decide its own claim. Responding to this contention, Mehta said revenue authorities cannot decide the title but they could examine whether it is government land.

The bench queried Mehta, it has been argued that once an inquiry is conducted by the collector, the property will cease to be a waqf property. The bench further queried that it has been claimed that after the completion of the inquiry the government will take over the entire property?

Mehta said in that case, the government will have to file a title suit for ownership.

The Centre also said it is important to note that the endowment acts across some states have far more intricate, pervasive and deeper religious acts to regulate and supervise through the commissioners as opposed to the state boards under the Waqf Act.

The arguments of Centre on Wednesday was inconclusive and would continue on Thursday.