PNS|New Delhi
The Centre on Tuesday defended the Waqf (Amendment) Act, 2025 in the Supreme Court, saying waqf by its very nature is a “secular concept” and can’t be stayed given “presumption of constitutionality” in its favour.
The Centre, in its written note submitted through Solicitor General Tushar Mehta before a bench comprising Chief Justice B R Gavai and Justice Augustine George Masih, addressed the issues the court had previously raised and said the law only sought to regulate secular aspects of waqf administration while safeguarding religious freedoms. He said there was no “grave national urgency” calling for its stay.
“It is a settled position in law that constitutional courts would not stay a statutory provision, either directly or indirectly, and will decide the matter finally. There is a presumption of constitutionality that applies to laws made by Parliament,” the note said.
The law officer would advance submissions on Wednesday.
The Centre said three issues, which were to be dealt by the bench for interim directions, was Section 3(r) which prospectively removes recognition of “waqf by user” and Section 3C which introduced special provisions excluding government property from being declared as waqf.
It said the third issue was with regard to the composition of the Central Waqf Council and state waqf boards, allowing limited non-Muslim representation.
Opposing the plea for the stay, it said in the absence of specific pleadings on facts and actual instances of breach of fundamental rights, any order injuncting the operationalisation of a statute, that too at a nascent stage would be counterproductive.
“Contrary to the submissions of the petitioners, no grave national urgency arises which warrants a stay of the enactment, as every situation which may arise during the operationalisation of the enactment can be tackled judicially at the appropriate forum,” it said.
The petitions confuse the creation of waqf and property regulation associated with Waqf, with religious rights under Articles 25 and 26 (freedom to practice and propagate religion) under the Constitution, it said.
“It may be noted that Waqf, by its very nature, is a secular concept. This is so since waqf merely means dedication of property,” it said.
The Centre vehemently opposed any move to allow unregistered waqf by user, saying this emerged during a period when formal documentation was uncommon.
“If the effect of the section saving only registered ‘waqf by user’ is interfered with either directly or indirectly by any interim order, it will not only defeat the object and provision itself, it will also result in the following anomalies…,” it said.
The Centre opposed any “legislative regime by judicial order”, that too an interim one, when Parliament had consciously “taken it away”.
“This would give a premium to unregistered ‘waqf by user’ who have been defying the law of the land since more than 100 years, though non-registration has always been a penal act,” it said.
The stay, it contended, would legitimise unregistered ‘waqf by user’ which is precluded and penalised by law.
“It would encourage the mischief which is reflected in the report of the Waqf Enquiry Committee in the year 1976…, which categorically notes that some waqfs are deliberately trying to avoid registration, concealing waqf, which affects the administration of waqfs,” it argued.
Moreover, recognition of ‘waqf by user’ is not a fundamental right in itself, it added.
“It was given statutory recognition by the Waqf Act. It is a settled position in law that a right conferred by a statute can always be taken away by a statute, as the Legislature is expected to keep pace with changing societal conditions,” it said.
Addressing objections to changes in the composition of waqf institutions, the Centre said the Central Waqf Council now allows up to four non-Muslim members out of 22.
The state waqf boards can include up to three non-Muslim members out of eleven, it said, adding that Muslim majority is preserved, and the inclusion of non-Muslims is intended to ensure transparency and inclusivity, especially since waqf issues may affect people of all faiths.
