Centre Clarifies Waqf Not a Fundamental Right in Supreme Court Hearing

New Delhi: The Centre has clarified to the Supreme Court that while waqf is an Islamic concept, it does not constitute an essential part of Islam, and therefore cannot be claimed as a fundamental right under the Constitution.

Solicitor General Tushar Mehta, representing the Centre, stated during the hearing that “until waqf is shown as an essential part of Islam, the rest of the arguments fail.” This statement was reported by LiveLaw.

The Centre’s position was presented in response to petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025. Mehta began the arguments defending the Act, emphasizing that no individual has the right to claim government land, even if it has been classified as waqf under the “waqf by user” principle.

Under the “waqf by user” principle, land used informally for religious or charitable purposes over time may be declared as waqf. However, Mehta argued that this does not confer a fundamental right, as the Supreme Court has ruled that the government can reclaim such property if it belongs to the government and has been declared as waqf.

Mehta further stated, “Waqf by user is not a fundamental right. It was recognised by statute—judgment says if right is conferred as legislative policy, the right can always be taken away.”

The bench, comprising Chief Justice BR Gavai and Justice Augustine George Masih, is currently hearing the case. The Waqf (Amendment) Act, 2025 was passed by Parliament in April and received presidential assent on April 5. The Lok Sabha cleared it with 288 votes in favour and 232 against, while the Rajya Sabha approved it with 128 supporting and 95 opposing votes.

The Supreme Court has been examining the constitutional validity of the amendment, which aims to regulate the management and administration of waqf properties in India. The issue at hand is whether the amendment infringes upon the fundamental rights of individuals who have historically claimed waqf properties.

The Centre’s argument is that waqf, while rooted in Islamic tradition, is not an essential part of Islam and therefore does not qualify as a fundamental right under the Indian Constitution. This position is critical in determining the legality of the amendment and its implications for the management of religious properties in the country.

The ongoing hearing is expected to have significant implications for the legal framework governing waqf in India. The Supreme Court’s decision will likely shape the future of religious property management and the rights of individuals who have historically claimed such properties.