The Central government has recently asserted before the Supreme Court that while Waqf is indeed an Islamic concept, it does not constitute an essential religious practice within Islam. This declaration was made by Solicitor General Tushar Mehta, who represented the Centre, during a hearing concerning the Waqf Amendment Act, 2025.
Mehta addressed the court, which included Chief Justice of India BR Gavai and Justice Augustine George Masih, stating that Waqf is essentially a form of charity. He argued that charity is a universal value present across various religions and, therefore, cannot be classified as an essential tenet of any single religion. To illustrate his point, Mehta posed a question: would Muslims who are financially unable to create a Waqf cease to be Muslims? He suggested that the answer is no, emphasizing that the Supreme Court has established a test to determine what constitutes an essential religious practice.
The Solicitor General further elaborated on the functions of Waqf boards, stating that they perform secular duties. These duties include managing Waqf properties and ensuring proper audits of accounts. Mehta underscored that these activities are purely secular in nature, and the inclusion of a maximum of two non-Muslim members on the board would not alter its secular character. He pointed out that Waqf boards do not engage in any religious activities related to the Waqf.
In defending the inclusion of non-Muslims on Waqf boards, Mehta argued that these boards handle properties and other secular and charitable organizations, potentially involving non-Muslims as beneficiaries or individuals affected by Waqfs. He clarified that the law allows for a maximum of two non-Muslim members, ensuring that the board's majority remains Muslim. This composition, according to Mehta, is justified because the board's functions are secular, focusing on property management, registration, maintenance, and auditing of accounts.
Mehta also addressed the issue of "Waqf-by-user," a practice where properties are recognized as Muslim endowments based on long-term, uninterrupted use, even without a formal declaration. He stated that "Waqf-by-user" is not a fundamental right but rather a creation of statute. Consequently, what the legislature creates, it can also take away. He also clarified that the Centre can unilaterally take over waqf land.
The Centre's stance is that the Waqf Amendment Act, 2025, aims to prevent the illegal declaration of Waqf on government land and address concerns about property misuse. Solicitor General Mehta assured the court that there is no intention to seize properties belonging to Muslims. He criticized the creation of a "false narrative" suggesting that documents would be demanded to prove Waqfs established by long use. Mehta referenced the 1923 Act, noting that it mandated the furnishing of descriptions of Waqfs, a provision also present in the 1954 Act. He argued that it is not permissible for anyone to claim that a Waqf need not be registered.
