Waqf not essential part of Islam: Centre
Contending that Waqf isn’t an essential part of Islam and Waqf boards discharge secular functions, the Centre on Wednesday defended the inclusion of non-Muslims in boards before the Supreme Court.
"Waqf is an Islamic concept. But it is not an essential part of Islam... Waqf is nothing but just charity in Islam… Charity is recognised in every religion. It is part of Christianity also, but the Supreme Court says it’s not an essential part. Hindus have a system of 'daan', Sikhs also have (charity). But it’s not an essential part of any religion,” Solicitor General Tushar Mehta told a Bench of Chief Justice of India BR Gavai and Justice AG Masih.
Mehta sought to emphasise that the functions of the Waqf board — managing Waqf properties and ensuring that accounts were properly audited — were purely secular activities and inclusion of a maximum of two non-Muslim members would not change its character. “Waqf board is not touching upon any religious activity of any of the Waqf," said Mehta, who would resume his arguments on Thursday.
“Unless it’s shown that Waqf is an essential part of Islam, the rest of the arguments (of petitioners’) can’t succeed,” Mehta said.
Earlier, opening arguments on behalf of the Centre, Mehta said nobody could claim right over public land by using ‘Waqf by user’ principle, saying it was created by a statute and can be taken away by a law. “Waqf by user is not a fundamental right, it is a creature of statute, and what the legislature creates, it can also take away,” Mehta argued.
He asserted that nobody could claim right over government land and it’s legally empowered to reclaim properties declared as Waqf by misusing the concept of ‘Waqf by user’.
‘Waqf by user’ was a practice where a property was recognised as a Muslim endowment (Waqf) based on its long-term, uninterrupted use for such purposes, even if there wasn't a formal, written declaration of Waqf by the owner.
“This menace (Waqf by user) has existed since 1923. The first legislation dealing with waqf property was introduced then to curb this very issue,” he said.
However, under the amended law notified on April 8, the concept of ‘Waqf by user’ has been abolished. Now, it is allowed only through declaration or endowment for all future Waqf properties.
The Bench, which is hearing petitions challenging the validity of the Waqf (Amendment) Act, 2025 only for passing interim orders, had on Tuesday told the petitioners that courts could not step in unless there’s a clear and serious problem as there’s presumption of validity in favour of laws passed by Parliament.
