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Synopsis

The Central Government has submitted a detailed preliminary affidavit before the Supreme Court, defending the constitutional validity of the Waqf (Amendment) Act, 2025, and opposing interim reliefs sought by petitioners challenging the law.

The affidavit was filed in response to a batch of petitions, including those filed by several Waqf Boards, challenging the amendments on grounds of infringement of fundamental rights under Articles 25 and 26 of the Constitution.

The affidavit has been filed by Shersha C. Shaik Mohiddin, Joint Secretary in the Ministry of Minority Affairs.

Filed as a “preliminary reply” to address issues flagged in the April 16 hearing, the affidavit underscores that constitutional courts should refrain from staying statutory provisions at an interim stage, especially when there is a presumption of constitutionality.

The Centre argued that the Waqf Amendment Act, 2025, was passed after extensive consultations, including the formation of a 31-member Joint Parliamentary Committee (JPC) comprising representatives from multiple political parties. The affidavit emphasizes that many of the petitioners had themselves participated in the JPC deliberations.

“Grant of an injunction against the operation of any provision of the law, either directly or indirectly, would be violative of the presumption of constitutionality, which is a critical component of the balance of power between the legislature and the judiciary,” the Centre submitted.

The affidavit further contends that the petitions do not point to any specific instance of injustice or irreparable harm that warrants an interim stay. Rather, they rest on broad, generalized claims of legislative overreach. “These petitions proceed on the false premise that the amendments take away any of the rights conferred under Articles 25 or 26,” the Centre stated.

Clarifying the intent behind the amendments, the government noted that the Waqf Act is primarily secular legislation aimed at validating dedications of property for religious and charitable purposes under Islamic principles. “The right to make a religious dedication remains untouched. What the law regulates is the secular dimension, the management and transparency of such dedications,” the Centre emphasized.

On the controversial removal of the provision for waqf by user, the Centre clarified that it does not bar the creation of waqfs but sets a requirement that such waqfs must be registered by April 8, 2025. “The concept of waqf by user arose in a time when documentary evidence was rare. The amendment does not invalidate them but requires them to be registered. This ensures legal certainty and avoids misuse,” the affidavit added.

It was submitted that non-registration has always attracted penal consequences under existing law and that those who “deliberately avoided” registration cannot now seek the benefits of continued legal protection.

The affidavit also addressed allegations of religious discrimination and violation of secular principles, stating that the law applies equally and is designed to prevent the abuse of waqf legislation, including the encroachment of government and private property under the garb of religious dedications.

The Centre pointed to the Waqf Asset Management System of India (WAMSI), an online platform introduced for transparency and accountability in waqf property administration. According to the affidavit, the performance of many Waqf Boards under the WAMSI initiative has been dismal, with incomplete or non-existent records. “Section 3B of the amended Act now mandates public disclosure and online availability of waqf records, a move critical in the era of transparency,” it said.

Defending the amendments further, the Centre also noted the importance of distinguishing between religious rights and the regulation of property. “Just because a property is religiously dedicated does not mean its management is immune from statutory regulation. This separation is constitutional and necessary for good governance,” it asserted.

The affidavit finally called for judicial consistency, reminding the Court that multiple petitions challenging the 1995 Act and 2013 amendments had also sought interim reliefs, but none were granted. “The original petitions remain pending without interim orders, and there is no compelling reason for this batch to be treated differently,” the government submitted.

Previously before Court

On April 24, in a detailed preliminary counter affidavit filed before the Supreme Court, the Kerala State Waqf Board strongly opposed the Waqf (Amendment) Act, 2025, describing the newly enacted law as “unconstitutional,” “discriminatory,” and “subversive of secularism.” The Board warned that the amendments pose a serious threat to the autonomy of religious institutions, the federal structure of the Constitution, and fundamental rights guaranteed under Articles 14, 15, 25, 26, and 30.

It is to be noted that on April 17, the Supreme Court had directed the Centre not to act upon the controversial provisions of the Act until further hearing, allowing State Governments and Waqf Boards to submit their responses. The Bench had recorded that Solicitor General (SG) Tushar Mehta, appearing for the Union of India, assured the Court that the Centre would file its preliminary response within 7 days. The matter is expected to be heard next on May 5, 2025, at 2PM.

Earlier, Senior Advocate Kapil Sibal, appearing for one of the petitioners challenging the Waqf Amendment Act, had argued that the law empowers the State to assess one’s religious identity and interferes in matters of inheritance and religious autonomy. “Who is the State to judge whether I am a Muslim?” Sibal had argued, taking exception to the five-year practicing Muslim condition for setting up a waqf.

The Court had questioned the government’s rationale for allowing a majority of non-Muslims in the Waqf advisory bodies while denying the same logic to Hindu endowment boards. “Mr. Mehta, are you saying that from now on, you will allow Muslims to be part of Hindu endowment boards? Say it openly,” CJI Khanna had asked pointedly, after it was revealed that, apart from two ex-officio members, only eight out of twenty-two members of the Waqf Council would be Muslims.

About the Bill 

Notably, the bill, introduced by Union Minority Affairs Minister Kiren Rijiju on August 28, 2024, in the Lok Sabha, aimed to amend the Waqf Act, 1995, to address management issues surrounding waqf properties.

Case Title: In Re: The Waqf (Amendment) Act, 2025 (1)