SC to take up petitions challenging Waqf (Amendment) Act on Monday

‘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.

Under the amended law notified on April 8, only self-owned resources can be declared as Waqf after ensuring the inheritance rights of women and children and the DC will determine that land being donated by a Muslim is actually in his ownership. It also empowers state governments to nominate members, including representatives from backward classes and both Shia and Sunni communities to Waqf boards.

The matter is listed for hearing on May 5 at 2 pm before a Bench of Chief Justice of India Sanjiv Khanna, Justice Sanjay Kumar and Justice KV Viswanathan which had on April 17 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 Centre has defended the Waqf (Amendment) Act, 2025, saying it was needed to curb the misuse of Waqf law provisions being misused to encroach private and government land.

In a 1,332-page affidavit filed in response to petitions challenging the amendment, the Centre defended abolition of ‘waqf by user’ and inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards.

The All India Muslim Personal Law Board has, however, contested the Centre’s affidavit, accusing it of submitting incorrect data before the top court.

Regarding abolition of ‘waqf by user’, the Centre said despite there being a regime of mandatory registration for all kinds of waqf since 1923, individuals or organizations used to claim private lands and government lands as waqf. Such claims “not only lead to deprivation of valuable property rights of individual citizens but similarly unauthorized claims over public properties,” it contended.

“Waqf by user does not deprive a person of the Muslim community to create a waqf. It impinges on the form by which such a dedication is to be made, which is the secular dimension of the dedication, and not the right of an individual to dedicate his or her property to God,” it contended.

Pointing out that non-Muslim members were in a “microscopic minority” in the Waqf Council and Waqf Boards, the Centre said their presence gave inclusivity to these bodies. “Since the secular aspects of waqf administrations may require dealing with issues concerning non-Muslims who are either beneficiaries, aggrieved parties or affected parties,” it said, adding limited non-Muslim participation was aimed at modernising governance structures.

There was nothing arbitrary if the competent Legislature permitted non-Muslims to participate in the effective administration of waqfs and thereby modernize the way in which waqfs were governed in India to keep pace with waqfs in other parts of the world, the Centre said.

Hinting at land grab, the Centre said “shockingly” there was an addition of over 20.92 lakh hectare in Waqf land since the previous amendment to the Waqf Act in 2013.

The Centre asserted that there can’t be a “blanket stay” on the law as there was a presumption of constitutionality in favour of a law enacted by Parliament.

Maintaining that the amendment was only for regulating the secular aspect regarding the management of Waqf properties, it asserted there was no violation of religious freedoms guaranteed under Articles 25 and 26 of the Constitution.

Regarding provisions allowing a government officer to decide if Waqf land encroached upon government land, the Centre said, “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 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.”

India