'Muslim Community Will Be Deprived Of Properties' : Kerala Islamic Clerics' Body Approaches Supreme Court Against Waqf Amendment Act

A prominent organization of Kerala-based Sunni Islamic scholars and clerics, Samastha Kerala Jamiatul Ulema, has filed a writ petition in the Supreme Court challenging the constitutionality of the Waqf (Amendment) Act 2025, which received the Presidential assent yesterday.

The Act, which makes sweeping changes to the Waqf Act 1995 in relation to the nature and administration of Islamic charitable dedications, has been questioned as violating the fundamental rights to equality(Article, to practice religion (Article 25), the right of a religious denomination to manage its own affairs (Article 26) etc. It is also contended that the amendments are manifestly arbitrary and discriminatory.

The petitioner-organization voices an apprehension that the cumulative effect of the amendments will be to "deprive the Muslim community of large tract of waqf properties."

The petitioner contends that the amendments do not contribute to the better administration of Waqfs; rather, they take away from the very essence of the concept of Waqf.

The specific grounds of challenge and arguments raised by the petitioner are as follows :

Elimination of Waqf by User

The amendment Act omits the concept of 'Waqf by User' by amending Section (r). As per Islamic law, a specific deed is not necessary to create a Waqf. Large percentage of Waqfs in India do not have any deed as they were created centuries ago and have been in use since time immemorial.  The concept of 'Waqf by user' has been judicially accepted through several case laws, including the Ayodhya-Babri Masjid case verdict.

As a result of deleting this 'Waqf by user' from statute now anybody can challenge the characteristics of these age-old Waqfs and claim these properties to be private property or government property. 

Inclusion of non-Muslims in Central Waqf Council and State Waqf Boards

The amendments mandate the inclusion of two non-Muslim members, excluding the ex-officio members, in the Central Council and the State Boards. This is an unconstitutional interference in the religious community's right to manage its own affairs in matters of religion and property. The petition also challenges the removal of a similar requirement that the CEO of the Board must be a Muslim.

Government made a judge in its own cause

The exception is taken to Section 3C of the Act, as per which a Government property declared as Waqf will not be deemed as a Waqf. An officer notified by the Government has been authorised to adjudicate the dispute under Section 3C. Till the said officer decides the issue, the property cannot be used as a Waqf.

Thus, the Government can judge its own cause, which results in a biased and partial dispute resolution mechanism. Also, the proviso that till a final decision, such a property would not be a Waqf is also questioned.

"This provision is blatantly contrary to the settled legal principles regarding interim relief in civil law. The settled law is that interim arrangement during pendency of a dispute shall be either in favour of status quo or to be decided on the basis on balance of convenience in each case. It is also to be noted herein that there is no time frame prescribed in this provision for the designated officer to conclude the inquiry and submit his report. Thus the officer can keep the inquiry pending for any longer time and the concerned property will remain ceased to be a waqf property during that period. Such a statutory provision is against all settled legal principles and blatantly arbitrary," the petitioner says.

Unreasonable requirement of information from Waqfs

It is contended that Section 3B imposes an unreasonable burden on the Waqfs to file several details on the central portal, which include name and address of creator of the Waqf, mode and date of creation. 

The petitioner contended that compliance with such a requirement is impossible for waqfs that are more than a century old. It is alleged that there is a mala fide intention to make the registration of the waqfs unfeasible and non-viable.

Restrictions on creation of Waqf

The condition that only a person practising Islamic faith for at least 5 years can create Waqfs has been called into question. It is stated that there is no straitjacket formula or basis on which the Government can determine as to whether a person is a practising Muslim or not.

The stipulation that waqf-alal-aulad should not deny inheritance rights is challenged as an unreasonable State interference in a person's right to manage one's own private property.

Waqfs can't be created over ASI-protected monuments

The petitioner challenges Section 3D arguing that declaring an existing waqf property as void because it is an ASI-protected monument is unsustainable.Also, Section 3E is challenged as a blatant attempt to deprive Muslim members of Scheduled Tribes under the Fifth or Sixth Schedule to the Constitution of India from exercising their rights Wakifs of various waqf properties.

AIMIM MP Asaduddin Owaisi, Congress MP Mohammed Jawed, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamit Ulema President Maulana Arshad Madani have filed petitions in the SC against the Act,

The petition has been filed by AoR Zulfikar Ali PS.