Waqf not essential part of Islam, Centre tells SC; defends inclusion of non-Muslims in waqf boards
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 waqf boards before the Supreme Court, saying the amended law dealt with secular aspects of waqf.
"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 are 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 can 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 cannot step in unless there’s a clear and serious problem as there’s presumption of validity in favour of laws passed by Parliament.
Asserting that the petitioners have a strong prima facie case, senior counsel Sibal had on Tuesday submitted on behalf of the petitioners that an irreparable injury would be caused if the provisions were activated. He attacked the amendments for nullifying the principle "once a Waqf, always a Waqf."
On April 17, it had deferred passing any interim orders in the matter after the Centre undertook not to make any appointments to waqf councils and waqf boards or de-notify existing waqf properties -- including waqf-by-user or waqf-by-deed properties already declared by notification or gazetted.
The Bench has identified three key issues -- Waqf by user, nomination of non-Muslims to the Waqf Council and state Waqf Boards, and identification of government land as Waqf property – for consideration at this stage for passing interim orders.
