No state barring two carried out survey of Waqf properties, SC told

On the concluding day of hearing on petitions challenging the constitutional validity of the Waqf Act, the Supreme Court was told that only two states have so far carried out survey of Waqf properties. The government, therefore, cannot claim that such properties have suddenly proliferated, the petitioners pointed out.

During the in parliament and earlier, the narrative was that Waqf Boards owned huge land and properties and were misusing them for private profit and not for public good.

Senior advocate Kapil Sibal referred to the Act making a distinction between Waqf which are registered and those which are not. Sibal said that in Delhi, only two Waqfs are registered.

“In Jammu and Kashmir and Telangana, no Waqfs are registered. Why are they not registered? Because of the failure of the state governments from 1954 onwards. And because of that, all community is going to be penalised," he said.

The survey commissioners did not do their job of surveying the properties and registering the Waqfs…it was the state’s responsibility which they have not discharged. “Now they say since the State has not discharged their duty, you have no right. They cannot take advantage of their own wrong,” he pointed out.

These are some of the contentious points on which the court heard both petitioners and the union of India:

Waqf By User: The abolition of Waqf by User has been challenged by the petitioners. Responding to the argument that Waqf by User is not an integral part of Islam, that charity is recommended by several religions, petitioners pointed out the five pillars of Islam followed across the world by Muslims.

While not every individual prays five times every day, keeps the fast, performs Hajj or donates extensively to charity, Zakat has been an essential part of Islam, the petitioners argued. Senior Advocate Rajeev Dhawan told the court that even the JPC report on Waqf acknowledged that the practice of Waqf is derived from Hadiths. “The JPC did not doubt it. I don’t know why the Union of India now doubts it”, he said.

Even the government’s counter affidavit, he pointed out, states, “creating a Waqf endowment for religious and charitable purposes is indeed a practice encouraged by Islam”. Even the Supreme Court has said in the past that Waqf is an institution which is close to the heart of the Muslim community.

The argument that Waqf is not an essential practice of Islam was developed and designed to deprive the Constitutional protection of fundamental rights granted by Article 25 and 26, he argued.  

The fundamental fallacy of the government argument is that it claims that a law created ‘Waqf by User’ and another law has taken it away, said senior advocate Abhishek Manu Singhvi, quipping, ‘Unfortunately, laws cannot act like God’. Referring to the requirement of registration in the Act, he pointed out that since ‘Waqf by User’ is now abolished, they can no longer registered. “How can something which is abolished be registered?” he asked. The Act also states that no Waqf property can be registered if the Collector thinks that it is government property.

Solicitor general Tushar Mehta informed the Court that the 'waqf by user' provision is prospective and does not take retrospective effect. This was assured in Parliament by Union Minister Kiren Rijiju. However, when former CJI  Sanjeev Khanna had enquired in April, 2025 if the waqf by users' properties will be affected or not, the SG had responded by saying, "if registered, no, they will remain as waqf if they are registered."

Disputed Waqf Will Cease to be Waqf: The Act states that in case of any dispute about ownership and whether a Waqf is a government property, such property would cease to be Waqf, even if it is registered. Senior advocate Kapil Sibal argued that in the absence of any provision for settling the dispute by a specified period, Waqf properties would cease to be Waqf till the dispute is settled.

Advocate Anas Tanwir said outside the court that the provision would encourage encroachers who will initiate a dispute to ensure that the properties cease to be Waqf. ‘Encroach a small part of a mosque, initiate a dispute and allow the dispute to linger’ would become the norm, he apprehended.

Barring Creation of Waqf in Scheduled Areas: The union of India argued that the provision is meant to protect the interests of tribals. Since Waqf is irreversible, argued solicitor general of India Tushar Mehta, it may come in conflict with vulnerable tribal population.

Tribals may follow Islam but they have their separate cultural identity, argued the SG. The petitioners pointed out that an overwhelming majority of people in Lakshwadeep happen to be tribals and follow Islam. To discriminate on the ground of religion, they argued, would fall foul of the constitutional test.

Senior advocate Huzafa Ahmadi argued that If the object was the protection of tribals from illegal transfer of their land and property, this provision does not cover it. The only object that is subserved is that a Muslim tribe is singled out and prevented from making a dedication, he argued.

ASI protected monuments not Waqf: The Act states that monuments protected by the Archaeological Survey of India cease to be Waqf. Petitioners argued that ASI is mandated to preserve old monuments and that preservation cannot by law affect the nature and character of the ownership.

Inclusion of non-Muslims in Central Waqf Council and State Waqf Boards:  The government argued that the council and the boards performed ‘secular’ administrative functions and non-Muslims in such boards are ‘still in minority’. Petitioners had asked if the government intended to include Muslims in the boards administering Hindu or Sikh religious endowments and whether that would be appropriate.

Waqf can be created only by Muslims practising Islam for five years: Who will determine who has been a practising Muslim for five years, asked advocate Anas Tanwir. Many Muslims drink alocohol, do not offer Namaz five times a day and do not fast during the month of Ramzan. Would they be deemed to be non-Muslims and how will it be determined, he asked.

Tanwir dispelled popular misconceptions about Waqf. If he offered Namaz on the lawns in the Supreme Court, the court premises do not become ‘Waqf’, he sarcastically explained to an interviewer outside the court.