Constitutionality of Waqf Amendment Act | Day 5: Provisions not glaringly unconstitutional, interim stay unnecessary, says Union

Mehta: New amendments protect members of the Scheduled Tribe Community 

Mehta reiterated that the 2025 Act, which states that Tribal land cannot be a waqf, was meant to protect the interests of the group. 

He submitted that the Constitution treated the Scheduled Tribe (ST) community separately. The Directive Principle of State Policy under Article 46 also imposes an obligation on the State to promote the education and economic interests of the ST community. Mehta cited P. Rami Reddy v State of Andhra Pradesh (1988). In that case, the Court had quoted the following excerpts from Nirad C. Chaudhari’s Book 3:

“It cannot therefore be gainsaid that the tribals not only require to be preserved and protected in respect of their economic and educational interest but they also require to be immunized from social injustice and exploitation.”

In this backdrop, Mehta asserted that many Muslim members of the Tribal community were losing land in the name of waqfs. The amendment protects them and, by doing so, upholds a constitutional mandate. 

Mehta: The amendment avoids “menace” 

The Solicitor addressed arguments describing the amendment as illegal because it denied non-Muslims the right to make a waqf. He stated that the law only prevented non-Muslims from creating a waqf, not donating to one. The two were distinct ideas. “It is not that charity is prohibited. It is charity of a certain kind [that is prohibited],” he said. 

This was essential because waqf was a Muslim concept and many non-Muslims tried to misuse this to defraud creditors—an issue recognised by the Objects and Reasoning of the first Musalman Wakf Act, 1923. Therefore, the amendment attempted to remove this “menace”. 

The requirement to be a practising Muslim for five years to create a waqf was to guard against the possibility of misuse. “How can anyone submit that waqf, which is a religious concept, be mandatorily applicable to non-muslims also?” he exclaimed. He was sure to clarify again that, though religious in concept, it was not an essential religious practice of Islam. 

Senior Advocate Rakesh Dwivedi reiterated that waqf was not an essential religious practice (ERP) and therefore, could be regulated by the state. Senior Advocate Gopal Sankaranarayanan submitted that since the issue of ERP is pending consideration before a nine-judge bench, the Court could wait for the larger bench’s decision. Mehta disagreed with this argument. 

Other arguments by the Respondents

On the composition of waqf administrative bodies, Mehta stated that the amendment inserted enabling provisions to include other non-Muslim members on the board. It was not as if Muslims were automatically in the minority within the board. Mehta stated that these organs—Central Waqf Council and State Waqf Boards—carried out secular functions. 

He further stated that, according to a decision of the Supreme Court, a Waqf Board fell under the purview of “state” under Article 12. Therefore, the government could have a say on who comprised it. 

Petitioners: Muslims cannot be punished for the incompetence of the Government 

Sibal reiterated that the process of determining whether a property was government property was completely vague, arbitrary and therefore unconstitutional. He highlighted that there were no timelines for the Collector to determine whether a waqf property was a government property. Therefore, a waqf could lose its status indefinitely. Further, he questioned which principle of law sustained the notion that a property would cease to be a waqf during the period when it is being determined. 

The amendment to Section 3r, Sibal submitted, also invalidated waqfs which were in dispute raised by a private person. There was no reason for this.

Further, he submitted that carrying out surveys, identifying and then registering waqf properties was the task of the state governments. According to Mehta’s arguments, a Survey Officer was tasked with the responsibility of identifying waqf properties under the 1954 Act. Sibal submitted that the survey officers had failed to undertake the exercise successfully and now, the 2025 Act was penalising the Muslim community for that by denotifying unregistered waqfs. He reiterated that past regimes did not change the nature of a waqf even if it was unregistered.

Waqf by user, Sibal asserted, was “a rule of evidence whose documents have been lost in the passage of time” Therefore, making its status contingent on registration was directly in the teeth of the Constitution. 

On the composition of the Waqf Council and Boards, he stated that Muslims would not be in the majority, simply because the Solicitor interpreted the statute in such a way. The fact was that they were effectively in the minority in a place where they had held the unanimous majority in the past. He submitted that the Union had provided no reason as to why members of the board had to now be nominated, rather than be elected by Electoral colleges like in the past. 

Other rejoinder arguments

Senior Advocate Rajeev Dhavan submitted that charity was one of the five pillars of Islam. Waqf, being an endowment to the Almighty, was a concept specific to the religion. Management of waqfs, he said, must therefore be left to Muslims. 

Senior Advocate A.M. Singhvi added that waqf was part of the corpus of Islam and could not be taken away via legislation. 

Senior Advocate Huzefa Ahmadi submitted that the amendment does not protect Muslims from the Tribal community from illegal transfer, it merely singles them out and denies them the right to make waqfs. 

The Bench reserved Judgement in the case half an hour after closing time.