The Solicitor General argued that waqf-by-user is not a fundamental right and is only a statutory recognition, which can be taken away.
Published May 21, 2025 | 5:27 PM ⚊ Updated May 21, 2025 | 5:27 PM
Waqf Act Amendment
Synopsis: On 21 May, the Supreme Court continued hearing petitions against the amended Waqf Act. Solicitor General Tushar Mehta defended the Act, calling it a response to issues since 1923. He refuted claims of government overreach, clarified the roles of Waqf Boards, addressed Sections 3C–3E, and asserted the amendments were based on extensive consultations.
The Supreme Court on Wednesday, 21 May, continued hearing the petitions filed against the Waqf Act, adjourned the hearing to Thursday, 22 May.
Solicitor General Tushar Mehta, opening the arguments on Wednesday, claimed that the government, through new act, is solving the menace that was there since 1923.
According to Bar and Bench, Solicitor General Tushar Mehta, making arguments on behalf of the Union government noted, “The question of whether parliament has legislative competence is not a question at all. That was the only basis on which stay on a statute was granted.”
Further speaking about the Joint Parliamentary Commission (JPC), he said, “We were eradicating the menace that was there since 1923. Every stakeholder was heard. It is my case that few petitioners cannot claim to represent the entire Muslim community. We received 96 lakh representations. The JPC had 36 sittings.”
He added, “There were repeated deliberations with the JPC. They took various inputs from different Muslim bodies. Thereafter, a voluminous report was submitted where suggestions were accepted/rejected with reasons. Then it was passed with unprecedented debate.”
Responding to the petitioner’s argument that the Section 3C of the act says that a “property shall not be treated as waqf property” till a designated officer completes an enquiry on whether it was encroaching upon Government land, SG Mehta said according to Livelaw, “The only consequence is revenue records will be corrected…The argument repeated by them is that this provision allows the wholesale takeover of the waqf. It is misleading. Designated Officer is not making a final determination of property- only the revenue records will be updated.”
He added, “It is only that through revenue records, it will come to notice that the property belongs to the Government… It will be open for affected parties to approach the waqf tribunal, final determination of title would be decided by tribunal or in appeal by the High Courts”
Referring to a Supreme Court judgment in Crawford Bayley vs Union of India upholding the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 1971, which enabled the government to appoint the Estate Officers to order eviction, Tushar Mehta refuted the petitioners’ argument that Section 3C enabled the government to act as a judge in its own cause.
Addressing the other issue raised by the petitioners, Waqf by user, Tushar Mehta said that there has been a lot of mischief under the same across the country.
“Now a false narrative is being made that Waqf is being snatched. This is nothing but the country being misled. Waqf by user is not allowed prospectively with some exceptions. One, it should be registered. There cannot be any mechanism just because someone gets up and says there is waqf till 2024 and not registered. It will be like legitimising what was punitive for 102 years.. and the other exception is for govt properties,” Tushar Mehta said according to Livelaw.
The Solicitor General argued that waqf-by-user is not a fundamental right and is only a statutory recognition, which can be taken away.
“Waqf is an Islamic concept. But it is not an essential part of Islam. Waqf is nothing but just charity in Islam,” he added further.
The Solicitor General also further claimed that the Waqf Board are performing secular functions. “Waqf Board discharges only secular function. Managing properties, register maintenance, and auditing accounts. Purely secular. There is a power to regulate secular practices in a religion. Administration of property has to be in accordance with law.”
“Sajjada nasheen is a spiritual office, and muttawalli is a secular manager. The Waqf Board only deals with the muttawalli,” SG said, referring to judgments.
The Solicitor General rejected the petitioners’ claim that the Amendments would let non-Muslims form a majority in State Waqf Boards and the Central Waqf Council, stating that only up to two non-Muslims can be members.
SG Mehta then responded to concerns about Section 3D, which prohibits declaring protected ancient monuments as Waqf property, explaining that the provision was added based on concerns raised by the ASI.
On Section 3E, which bars creation of Waqfs in Scheduled Tribe areas, he said the Constitution mandates special protection for these areas. He also noted that no Scheduled Tribe member had challenged the provision in court, making the objection purely “academic.”
The petitions challenging the new Waqf law were filed by over 90 parties, including Members of Parliament from Congress, Samajwadi Party, Trinamool Congress, AIMIM, from Tamil Nadu, DMK, actor Vijay’s TVK party, several Islamic organisations, and individuals. The act seeks to amend the law governing Waqf boards and has proposed far-reaching changes in the present Act, including ensuring the representation of Muslim women and non-Muslims in such bodies.
On 17 April, the Central government assured the Bench, then headed by then Chief Justice of India (CJI) Sanjiv Khanna, that it would temporarily refrain from implementing several key provisions of the Act. The Court took note of this assurance and chose not to issue a formal stay. Following CJI Khanna’s retirement on 13 May, the case is being heard by a Bench comprising CJI BR Gavai and Justice AG Masih.
On Tuesday, the petitioners presented their arguments, and the Union government presented their counter arguments on Wednesday.
Senior advocate Kapil Sibal, on Tuesday, speaking for the petitioners, told the bench that, “It is a complete departure and an attempt to take over through creeping acquisitions of the waqf properties.” He argued that this violates the rights of Muslims to manage their religious affairs.
However, the CJI noted that courts will interfere only if a glaring case is made out. “There is a presumption of constitutionality for the statute and courts cannot interfere unless a glaring case is made out. This is what we have been taught since college.”
