Waqf Not a Fundamental Right, Not Essential Part of Islam: Solicitor General in Supreme Court
New Delhi: On the second day of day-long hearings on the constitutionality of Waqf (Amendment) Act, 2025, on Wednesday (May 21), the Union government presented its argument against the petitions challenging the legislation and said that waqf is “not a fundamental right”, nor is it an “essential” part of Islam.
A bench, comprising Chief Justice B.R. Gavai and Justice Augustine George Masih, is hearing the matter.
Solicitor General Tushar Mehta, representing the Union government, told the court, “Waqf by user is not a fundamental right, it was recognised by statute in 1954, and before that in Bengal Act... A judgment says that if some right is conferred by statute, as legislative policy, right can always be taken away by the State,” SG Mehta said, as quoted by Bar and Bench.
Also read: Waqf 2025: Beyond Supreme Court Hearing, Doubts About Constitutionality of the Act Still Persist
Referring to B.R. Ambedkar’s speech in the Constituent Assembly, Mehta added that Waqf is also not an essential part of Islam. “Waqf is an Islamic concept, no dispute, but waqf is not an essential part of Islam. Unless that aspect is shown (rest of arguments fail) ... Charity is part of every religion. It is part of Christianity also, but Supreme Court says it is not an essential part .. Hindus have a system of daan, Sikhs also have (charity) ... but it is not an essential part.”
“Waqf is nothing but just charity in Islam,” he said.
Mehta denied the petitioners’ arguments that the amendment results in a takeover of the waqf properties, calling it “misleading”. Advocate Kapil Sibal, on the petitioners side, had argued on Tuesday (May 20) that the amendment is “aimed at capturing the waqf”.
Regarding the Central Waqf Council and state waqf boards, Mehta told the bench that waqf boards discharged “secular” functions and therefore, the inclusion of non-Muslims in them was permissible.
“First, Central Council which issues direction regarding administration and does not deal with waqf which is a mosque, school etc. Waqf Board discharges only secular function – register maintenance, accounts audited etc. Purely secular,” he said.
Also read: Waqf Affidavit: Modi Government is Not Only Denying Muslims But Also the Supremacy of Constitution
“Having maximum two non-Muslim members, would it change any character? Waqf Board is not touching upon any religious activity of any of the waqf. This is the distinction between waqf and other (religious endowments). In Hindu endowments, the Hindu Endowments Commissioner can go inside the temple. Pujaris are appointed by the state,” he said and added that under Article 25(2)(a), “there is power to regular secular practices in religion.”
The bench has allocated another full day to the petitioners to respond to Mehta’s arguments. The hearing will resume tomorrow.
On Tuesday, the petitioners had presented their arguments before the court, challenging the amended act, stating that it is discriminatory against Muslims and amounts to unwarranted interference in Islamic religious affairs and the management of waqf properties.
CJI Gavai had observed that laws passed by Parliament are assumed to be constitutional, and courts cannot step in unless there is a clear and serious problem.
SG Mehta noted that the Union government had submitted its response on the three identified issues, and requested the court to confine to those. “The written submissions of the petitioners now extend to several other issues. My request is to confine it to the three issues only,” he said, as reported by Hindustan Times.
Meanwhile, the Supreme Court has also stated that no eviction will take place from waqf properties “until further notice”.
On April 17, the Union government had assured the Supreme Court bench, then headed by CJI Sanjiv Khanna, that no waqf properties will be denotified until the next date of hearing, and that it will also not act upon the controversial provisions of the amended act, such as inclusion of non-Muslims in the Central Waqf Council and state Waqf boards.
Following Khanna's retirement on May 13, the matter is now being heard by the bench of CJI Gavai and Justice Masih.
A slew of opposition leaders, NGOs and activists have criticised the amended act as a violation of Article 26 of the constitution, which guarantees the freedom to manage religious affairs of citizens. The swift passage of the act in parliament and its implementation has also led to violence in several states, including West Bengal’s Murshidabad district.
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