The Narendra Modi government has submitted an affidavit to the Supreme Court as directed, documenting its opposition to the petitions filed against the Waqf (Amendment) Act, 2025. In the affidavit, it has also elaborated on why the government thinks the apex court cannot intervene in the legislative matter. 

The affidavit openly asserts the argument that the Supreme Court has no authority to block its laws made in the parliament, lending doubts about the Union government’s own claim that the amendments were made for welfare of common Muslims.

However, a closer look reveals that the affidavit belies that all government claims made so far that the amendments were for the welfare of Muslims. It openly asserts the argument that the Supreme Court has no authority to block its laws made in the parliament. 

A brief context and the essential arguments of the petitioners would help to understand the real intent of both the Act and the affidavit.

A comprehensive Waqf Act in lieu of protecting the waqf from the encroachers of all kinds and bringing in transparency and accountability in its management was brought in 1995 and  some amendments were made with the same objective even in 2013.

The present Waqf (Amendment) Act also states the same objectives but the subsequent amendments that were made to 1995 Act were quite contradictory to the objectives. For example, the petitioners who have challenged the impugned Act in the Supreme Court have listed mainly following objections:

1. While both waqf tradition and hither to Waqf acts passed in 1954, 1995 and 2013, provides for any persons to donate his/her properties as waqf, the 2025 amendment  restricts it only to the persons who demonstrate that they are practising Muslims since last five years. The petitioners argue that it is in violation of Article 300 of the constitution which gives rights to the owner of the property to deal with it as he deems fit. It is also a violation of Article 15 since such conditions for donations have been prescribed only to Muslims and hence amounts to discrimination based on religion. 
2. Another important challenge of the petitioners was about the nullification of the “Waqf By User” tradition. Since there are lakhs of waqf properties donated centuries ago, when there was no need or practice of written deed or documentation, a law which declares unregistered waqf properties as non-waqf is argued as a sinister legal design to legally encroach waqf properties without deeds, which runs to more than half of existing waqf properties all over India.
3. Delegating the power of adjudicating the disputes over the ownership of waqf properties between the government, which is alleged to be the biggest encroacher of the waqf properties, and the waqf board, which was earlier the job of a Waqf Tribunal, a quasi judicial body, to the designated officer of the government itself is being challenged as the violation of basic principles of Natural Justice where one can not become the judge of his own case. Moreover, suspending the waqf nature of the property if and when government disputes its claim till the adjudication is over was also taken before the court as violation of the basic principles of natural justice. 
4. Inclusion of non Muslim members in the Central Waqf council and the state waqf board was challenged on the premises of religious discrimination, since the same thumb rule is not applied to management of religious and charitable institutions of other  religious denominations  and hence  violating Article 15.  
5. It was also challenged as intrusion in religious affairs by the state, a violation of its fundamental right,  including managing their religious institutions as provided by Article 26.

The Supreme Court while hearing the petitions saw some merit in the petitions and had hinted to pass an interim order to stay three of the provisos of the new law, namely denotifying the waqf properties which are not registered, inclusion of non-Muslims in the board and the council and power of the designated officer to adjudicate on the disputes between the government and the waqf board.

But the solicitor general intervened and pleaded for a week’s time to file the response to the petitions. 

Accordingly, a week’s time was granted after the SG gave a written undertaking that no new members will be nominated to waqf or board as per the new law and all the waqf which have been either notified legally or declared by the courts as waqf shall not be denotified till the next date of hearing i.e, May 5. 

Accordingly, the Modi government has filed its 1,332-page affidavit with many annexures. But even a preliminary reading of the affidavit exposes the ill intent and larger autocratic and communal designs of the Modi government 

An open declaration to destroy waqf?

As reported by LiveLaw, the Modi government’s affidavit reiterates that 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”. The government also claims that while Article 26(d) provides the right for a religious community to administer its property, it ought to be “in accordance with law”. And the law itself provides for the secular scrutiny of the purpose of the property and does not divest the community from its property. 

But the Modi government’s real intent shows in the affidavit as it denies Islamic religiosity embedded in the charities like waqf, zakat etc. Hence, while financial misappropriation of the waqfs have also been under the secular scrutiny of the government provided by all the hitherto acts, the Modi government steps into the religiosity of the charities by legislating on who is a Muslim, and what is a waqf which are the domains of religion. 

Also read: Waqf Bill Passage Proves Indian Muslims are Political Orphans

It is here that the affidavit betrays its communal objectives masquerading as secular intervention.

The affidavit provides numerous examples from different states to prove how the “Waqf by User” clause has been mismanaged to encroach government and private properties at an exponential level. It states that there has been a 116%  increase in the waqf properties after the 2013 amendment, and hence, abundant encroachment by the waqf board, using the ‘Waqf by User’ clause.

However, the affidavit glosses over the fact that the registration of waqf properties which were not taken up seriously till 2013, and its entry in the WAMSI portal of waqf properties also doubled after 2013. It also fails to explain a simple fact that if there was encroachment of non-waqf properties post 2013, why was there no proportionate increase in the cases in the tribunal in the same period.

Thus, even though the title of the amended act says ‘United Waqf Management, Efficiency, Empowerment and Development’ and has a lofty objective of enhancing  the protection of Waqf properties, the affidavit makes it clear that the law is in fact,  amended primarily to legally encroach on waqf properties.

The affidavit assures that the amendment does not affect the existing waqf lands which are registered before the new law comes into force.

But it also does not make it clear whether the waqfs which are in use for centuries, and are unregistered due to lack of documents shall be protected under the new ‘Waqf by User’ clause. Even though the affidavit says that no deed or documentary evidence is required for registration, the act itself is still silent on this.  

The affidavit says that the waqf itself is an “evolving” concept unlike Hindu religious charity and hence comparison of the waqf with other religious charities is improper. It also says since “Waqf board exercises jurisdiction over properties belonging to non-Muslims, (and) inclusion of non-Muslims balances the constitutional equities on both sides.” Since the Waqf Council and boards, it added, perform secular administrative functions, non-Muslim participation is not wrong.

But the affidavit does not make it clear as to how and when the concept of Waqf evolved from the religious domain to secular domain to deny it the protection of Article 26. The affidavit also conveniently sidesteps the question of why Muslims are not similarly included in the secular administration of Hindu temples and why by statute, only Hindus are nominated to all secular administrative responsibilities by new laws in case of Kashi Vishwanath Temple Trust or Tirumala Tirupathi Devasthanam Trust since much of the land and other facilities are provided by the secular government and also funds donated by devotes of all religions!

Another factor in the Waqf domain is that irrespective of the religiosity of the waqf donor, once a waqf is declared it ceases to have the character of non-Muslim religiosity. On the other hand, according to the new act, non-Muslims are prevented from making Waqf. Then how is the need for inclusion of non Muslims justified? 

The affidavit then goes a step further to state that Article 26 does not provide for managing the affairs by persons belonging to the same religion.

It also says that it is a false propaganda that Muslims will become a minority in the council and the board. Accordingly, it states that only four in the Central Waqf Council and only three in state boards are non-Muslims. However, a bare reading of the section 10 and 12 of the new act make would make it clear that a provision for the possibility of having majority of non-Muslims (12 out of 22 in the Central Waqf Council, 7 out of 11 in state waqf boards), has been made and the Modi government’s affidavit is false.

The Modi government has blatantly declared its communal intent behind the amendments through this affidavit which is to forcibly acquire waqf properties alleging encroachment and denying the right of Managing its religious affairs to Muslims.

Most importantly, through the affidavit, the Modi government questions the Supreme Court’s constitutional authority to block unconstitutional aspects of these laws.

Rejection of judicial oversight and the supremacy of constitution

According to Modi’s affidavit:

• “when the Legislature has acted and enacted a law, which is to be presumed to be constitutional, replacing the regime so established would be impermissible” 
• And “Any order in the nature of one sought by the Petitioners, would amount to a stay of the Amendment Act, validly passed by the Parliament at an interim state, which is an exercise impermissible within the confines of judicial review envisaged under the Constitution.”

Although, the affidavit states that a high threshold is required for the stay of the law as another judicial standard the above argument of supremacy of the parliament over judiciary and hence even the constitution makes core of its argument. 

Also read: Waqf 2025: Beyond Supreme Court Hearing, Doubts About Constitutionality of the Act Still Persist

On these bases, the Modi government demands that all petitions opposing the Waqf laws be dismissed.

However, in the Constituent Assembly, Dr. B.R. Ambedkar had raised concerns about majoritarian governments potentially misusing their legislative majority to violate people’s fundamental rights.

To address this, the Constitution incorporated:

1. Article 13 (laws must not violate fundamental rights)
2. Articles 32 and 226 (right to approach High Courts and the Supreme Court against government violations of fundamental rights)
3. Article 142 (Supreme Court’s discretion to ensure complete justice).

Moreover, during Indira Gandhi’s time, a similar attempt was made to exempt governmental actions from judicial review.

In response, in the 1973 Kesavananda Bharati case, a 13-judge constitutional bench ruled that the constitution is supreme over the legislature, executive, and judiciary.

While Parliament can make laws, it cannot alter the basic structure of the constitution. Thus, contrary to the Modi government’s claim, merely passing a law in parliament does not automatically make it constitutionally valid.

The government’s stance violates Article 13, undermines the Kesavananda Bharati ruling, and has a sinister intention to bypass constitutional checks.

Now, the Modi government, using its parliamentary majority, is trying to dismantle the constitutional order and neutralise judicial scrutiny over legislative actions. Vice President Dhankhar has also been repeatedly claiming that parliament is superior to the courts. In its waqf affidavit too, the Modi government strongly promotes this anti-constitutional, fascist argument.

This is not merely an attack on Waqf or Muslims but the Modi government is also attacking the supremacy of the constitution, aiming to institutionalise fascism through parliamentary majority.

Will the Supreme Court, on May 5, use its constitutional authority to push back against this fascist conspiracy by the Modi government?

“We, the people of this country,” the true framers of the Constitution, must understand that the struggle against the Waqf amendment is fundamentally a struggle to defend the Constitution against the Modi government’s assault.

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