‘Waqf Not Essential to Islam, Not a Fundamental Right’: Centre Tells SC

GG News Bureau
New Delhi, 21st May: The Central government on Wednesday defended the Waqf Amendment Act before the Supreme Court, asserting that while Waqf is an Islamic concept, it is neither an essential religious practice nor a fundamental right under the Constitution. The remarks were made by Solicitor General Tushar Mehta as the court heard petitions challenging the constitutional validity of the amended law.

“Waqf is an Islamic concept, no doubt about it, but it is not an essential part of Islam. Waqf is not a fundamental right,” Mehta told a bench headed by Chief Justice of India D.Y. Chandrachud, which also includes Justice A.G. Masih. He further argued that the Waqf Board’s functions are secular in nature and that having non-Muslim members on the board does not interfere with any religious activity.

Mehta refuted allegations that the amended law enables mass acquisition of Waqf properties by the State. “A false narrative is being created that people will be forced to furnish documents or that Waqf lands are being captured en masse. The government is the custodian of property for 140 crore citizens and must ensure public property is not diverted illegally,” he said.

Responding to objections against the inclusion of two non-Muslim members in Waqf Boards, Mehta said, “What difference does having two non-Muslims make? The law does not affect religious practices.” He also stressed that petitioners cannot claim to speak for the entire Muslim community, noting that the Joint Parliamentary Committee (JPC) on the Waqf Amendment Bill had received 96 lakh representations and conducted 36 sittings before finalising its recommendations.

On the controversial provision of ‘waqf by user’—where continuous use is cited to claim religious status over a property—Mehta stated, “By definition, waqf by user means the property belongs to someone else, and a right has been acquired by usage. If the property is government-owned, can the government not examine ownership?”

Addressing concerns that revenue officials could act as judges in deciding property claims, Mehta clarified, “Only title suits can determine ownership. Revenue authorities can’t decide the title.” He emphasised that the government would still need to file a title suit to claim ownership of disputed properties.

The Solicitor General also differentiated Waqf from Hindu endowments, arguing that control over the latter is far more pervasive. “Hindu religious endowments are purely religious, while Muslim Waqfs also administer secular institutions like schools, orphanages, and dharamshalas,” he said, citing the Bombay Public Trusts Act under which even temples are governed by a secular framework.

Mehta explained that a Waqf comprises two offices—the Sajjadanashin, who oversees spiritual functions, and the Mutawalli, who manages administration. “This law is concerned only with the secular, administrative aspects, not religious or spiritual practices,” he clarified.

Defending the law’s constitutionality, Mehta said it does not violate Article 25, which guarantees freedom of religion. Drawing parallels to the 1956 Hindu Code Bill that reformed Hindu personal laws, he said, “When that bill was enacted, the personal law rights of Hindus, Sikhs, Buddhists, Christians, and Jains were codified. No one then questioned why Muslims were excluded.”

In contrast, senior advocate Kapil Sibal, appearing for the petitioners, alleged that the amendment was aimed at seizing Waqf properties without due process. “The law is designed in such a way that Waqf property can be taken away by mere complaint. Government officers become judges in their own cause,” he argued.

Sibal raised concerns over the condition requiring a person to have practised Islam for at least five years before making a Waqf donation. “If I am on my deathbed and want to donate property as Waqf, I must first prove I’ve been a practising Muslim. That is unconstitutional,” he said.

He also criticised the government’s role in adjudicating ownership claims, saying, “This is my private property. It cannot become State property simply because a Collector conducts an inquiry.”

Drawing a comparison between religious endowments, Sibal said, “Temples can receive public offerings, but mosques and graveyards don’t generate such funds. That’s why people donate private property as Waqf. There is no ‘chadhava’ like in temples.”

The Chief Justice acknowledged the seriousness of the issue but noted that the courts cannot strike down a law unless a clear constitutional violation is established. “There is a presumption of constitutionality when a law is passed by Parliament,” he said.

The hearing on the matter is expected to continue in the coming days.