Waqf Registration Not A New Requirement; 2025 Amendments Only Regulatory, Won't Affect Religious Rights : Centre Tells Supreme Court

The Union Government, through its Ministry of Minority Affairs, has filed a preliminary affidavit in response to the petitions challenging the Waqf Amendment Act 2025, refuting the arguments that the law was violative of the fundamental rights guaranteed under the Constitution.

The Centre maintained that the amendments are only for the regulation of the secular aspect regarding the management of the properties and hence, there was no violation of the religious freedoms guaranteed under Articles 25 and 26 of the Constitution. It asserted that the 2025 Amendment Act squarely falls within the permissible regulatory power of the State

"The Waqf Act, 1995 conferred a recognition of waqfs as a valid statutory dedication of property and that remains unchanged continuing to protect the religious rights of a Muslim individual or a community in general. The secular provisions of proving such a dedication, and the management of such properties including preventing their waste or misuse are permissible under the constitutional framework," the affidavit stated.

"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."

The Centre responded to the contentions regarding the amendments as follows :

On the omission of Waqf-by-user

The omission of 'waqf-by-user' does not take affect the existing waqf lands which are registered. A "false narrative" is being created that this omission will impact the centuries-old waqf lands, which do not have specific deeds. As per the proviso to Section 3(1)(r), there is no need to produce any document to get the recognition for existing 'waqf-by-user' lands. The only condition is that they must have been registered as on April 8, 2025 (the date of notification of the Act). However, registration of waqf lands is not a new condition. This requirement was already there for hundred years, ever since the enactment of the Mussalman Wakf Act, 1923. A similar mandate was there 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 submiLed 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 affidavit read.

The Centre said that "it is too late in the day for anyone to claim today that although it claims to be a genuine waqf, it is still not registered."

On inclusion of non-Muslims in Central Waqf Council and State Waqf Boards

The Central Waqf Council only has a general advisory role and does not deal with any specific land. The State Board exercises regulatory powers which are secular in nature. There are judicial pronouncements also taking the view that the Waqf Board is a secular body and is not a representative body of Muslims.

The changes do not impact the religious rights of Muslims in any manner. Article 26 does not confer the right to administer a property as per the tenets of a religion. The Centre also asserted that the changes will not make Muslims a minority in these bodies. The maximum possible number of non-Muslims in the Central Council is 4 (out of 22 members) and in Boards is 3(out of 11 members), assuming the ex-officio members are also non-muslims.

The Centre also drew a distinction between Waqf Boards and bodies dealing with Hindu Religious Endowments (During the hearing, the Court had posed if Muslims could be included in the Hindu boards). It was said that Waqf is a wider and ever evolving concept when compared to religious endowements. Also, all States do not have laws dealing with Hindu religius endowements and in many states, they are dealt with by general laws applicable to trusts. Further, since 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."

On allowing a Government officer to decide whether Waqf land encroached upon Government land

The Centre said that there are "startling examples" whereby the Government lands or even the private lands were declared as waqf properties. Since Government lands are held in public trust, the legislature can provide a mechanism to protect them and to adjudicate the disputes pertaining 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 Board's unilateral records. It is submiLed 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.

On proviso to Section 2A

Regarding the proviso, which declares that trusts created by Muslim persons will not be governed by Waqf Act, the Centre said that this was a principle laid down by the Supreme Court itself in many judgments. This amendment merely enables a Muslim person to opt for the secular general framework to create a trust. Responding to the Court's reservation about the proviso giving overriding effect over judgments, the Centre said that it was only 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 affidavit filed by Shersha C Saidik Mohiddin, Joint Secretary, the Ministry of Minority Affairs, stated.

The Centre also urged the Supreme Court not to pass any interim order staying the provisions of the Act, by pointing out that every law enacted by the Parliament is presumed to be constitutional. It cited a long line of precedents which hold that Courts should not interdict the operation of statutes at an interim stage.

The affidavit annexed documents running into hundreds of pages, including the reports of the Joint Parliamentary Committee and data pertaining to the extent of Waqf lands, to underscore that the amendments were carried out after extensive consultation and detailed deliberations on various relevant aspects.

The Supreme Court has posted the petitions for hearing on May 5.  Last week, after the Court hinted at passing an interim order, the Centre undertook to put on hold certain contentious provisions. The Centre assured that the existing waqf lands, including waqf-by-user lands, won't be affected, if they are registered or notified. Also, the Centre agreed to not make any appointments to the Central Waqf Council and the State Waqf Boards.