The Centre on Friday (25th April) filed its preliminary affidavit before the Supreme Court seeking the dismissal of petitions challenging the Waqf (Amendment) Act, 2025. In its affidavit, filed by Shersha C Saidik Mohiddin, Joint Secretary, the Ministry of Minority Affairs, the Centre submitted that there is a presumption of constitutionality of a law made by the Parliament and therefore, without prejudice to the Supreme Court’s power to examine the constitutionality of the law, a stay on its provisions at such a preliminary stage violates the principle of balance of powers.
“There is a presumption of constitutionality that applies to laws made by Parliament, and an interim stay is against the principle of the balance of powers. The law has been made on the recommendations of a Joint Parliamentary Committee… followed by an extensive debate in both Houses of Parliament,” the Centre argued as the Supreme Court hinted at staying certain contentious provisions of the Act last week. Justifying the regulation of the waqf properties, the Centre pointed out that after 2013 over 20 lakh hectare of land was added in waqf land.
Refuting allegations, the Centre said that the legislation does not violate fundamental rights of the Muslims and that the amendments are aimed at regulating the secular aspects regarding the management of the properties. It added that the Act falls within the ambit of the permissible regulatory power of the State. “The Waqf (Amendment) Act, 2025 very clearly limits itself to secular dimensions (like record management, procedural reforms, and administrative structure) and not any matters of ritual, prayer, or fundamental Islamic obligations. It is submitted that therefore the Act, by confining itself to non-essential practices, steers well clear of infringing the religious freedoms guaranteed by the Constitution,” said the Centre.
False narrative regarding Waqf-by-user
Defending the elimination of waqf-by-user, the Centre argued that it does not affect registered waqf lands. The Centre said that a false narrative was being created claiming that the elimination of waqf-by-user would impact the centuries old waqf lands which do not have specific deeds. It added that as per section 3(1)(r) of the Amendment Act, a registered waqf land does not require to produce any document to get the recognition for existing ‘waqf-by-user’ lands.
The Centre highlighted that the requirement for the registration of waqf lands was not a new addition and that it existed for hundreds of years since the enactment of the Mussalman Wakf Act, 1923 and that it also found a place in the Waqf Act of 1954 and 1995.
“It is submitted that despite the existence of the concept of ‘waqf by user’, the requirement of registration or self-declarations before the Court were made mandatory in order to ensure that the regulatory provisions of the enactments achieve the intended objectives. It is submitted that therefore, there has been a clear and mandatory legislative regime, which has sought to enforce and implement registration requirements on all kinds of waqfs since at least 1923,” the Centre said.
Non-Muslims in the Central Waqf Council and the State Waqf Boards
Addressing the objections against the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Centre said that the Waqf Council is merely an advisory body and it does not deal with any specific land. And, the State Board is a secular regulatory body. The Centre quoted judgments wherein Waqf Board has been declared as a secular body not representative of Muslims.
Highlighting that the maximum number of non-Muslims in the Central Council has been limited to 4 out of 22 and in State Boards to 3 out of 11, the Centre asserted that the inclusion of non-Muslims in the Councils and Boards will not render the Muslims a minority in these bodies. Responding to the court’s query about whether Muslims could be included in the Hindu boards, the Centre distinguished between the two. The Centre said that Waqf is a wider and ever-evolving concept when compared to religious endowments. It added that Hindu religious endowments do not exist in all states, and in many states, they are dealt with as per the general laws applicable to trusts. Emphasising that the Waqf Boards often exercise jurisdiction over properties belonging to non-Muslims, the presence of non-Muslims in the Boards will balance the “constitutional equities on both sides.”
Empowering a Government officer to decide on encroachment upon Government land by Waqf
Regarding the provisions empowering government officers to decide whether a waqf land is encroaching on a government land, the Centre presented many examples where Government lands and private lands were declared as waqf properties. The Centre that since Government lands are held in public trust, the legislature can devise a mechanism to protect them and to adjudicate the disputes relating to them.
“The rationale for these provisions arises 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 the Board’s unilateral records. It is submitted that 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,” the Centre said.
Trusts created by Muslims not to be governed by the Waqf Act
Explaining the proviso to section 2A of the Act, declares that trusts created by Muslim persons will not be governed by Waqf Act, the Centre said that this principle was laid down by the Supreme Court itself in several judgments. It added that it is a mere enabling provision which makes the option of creating a trust as per the general framework available to a Muslim.
Responding to the Court’s question whether proviso giving overriding effect over judgments, the Centre said that it was merely a clarificatory provision.
“The Amendment Act reaffirms that identification, classification, and regulation of waqf property must be subject to legal standards and judicial oversight. It is submitted that the legislative design of the Waqf (Amendment) Act, 2025 ensures that no person is denied access to courts, and that the decisions affecting property rights, religious freedom, and public charity are made within the bounds of fairness and legality. It is submitted that through these changes, the Amendment Act brings judicial accountability, transparency, and fairness, “ the Centre clarified.
The next date for the hearing is on May 5.
