As the Supreme Court Monday froze the implementation of ertain crucial provisions of the Waqf (Amendment) Act, 2025, while declining to stay the Act in its entirety, Union Minority Affairs Minister Kiren Rijiju welcomed the interim order, and called it a good sign for Parliamentary democracy.
On the clauses that were stayed, Rijiju said “we will see… what can be done through rules” regarding the provision requiring a person intending to create a Waqf (donated property) to prove they had been practising Islam for at least five years.
As for the Court’s significant decision to pause the clause permitting a collector to determine whether a property under dispute was Waqf or not, calling it against the doctrine of separation of powers, Rijiju said: “As submitted by the Solicitor General, no rights crystallise merely on an officer’s report, and possession cannot be taken without orders of the Tribunal or higher courts”.
These two clauses, along with the composition of the Central Waqf Council and Waqf boards across states, and the concept of ‘Waqf by user’ were at the heart of the debates between the government and Opposition in the Joint Committee of Parliament, which discussed the Waqf (Amendment) Bill. The same issues also led to heated debates in Parliament, when the Bill came up for discussion and passage.
Collector clause
In their dissent note to the Joint Committee of Parliament, Congress MPs Syed Naseer Hussain, Mohammed Jawed and Imran Masood said: “The shift from judicial to administrative authority, particularly empowering the collector over Waqf boards and tribunals, compromises the principle of separation of powers and introduces potential bias, as the collector often represents the state in disputes over Waqf properties.”
They welcomed the fact that, “after serious objections by stakeholders”, Treasury benches had “partially agreed to transfer the power from the collector to the designated officer”. However, they said, the amendment does not address “the qualifications or relevant experience required for the Designated Officer, especially in relation to the administration of Waqf properties”. “Hence, this amendment is ill conceived and should be omitted,” the Congress leaders said.
Their party colleague Gaurav Gogoi argued that “the Bill grants the collector unbridled powers and authority”, while not taking “the fact into consideration that the collector, being a part of the Revenue Court and in charge of maintaining revenue records, can in no way grant title to the property…”.
AIMIM chief Asaduddin Owaisi said the clause puts the collector “in a position of direct conflict of interest, as the largest number of disputes concerning Waqf properties are between Waqfs on the one hand and state governments on the other”.
The government strongly defended the changes to the Waqf Act, including the provision regarding the collector. Leading the charge, Union Home Minister Amit Shah told the Lok Sabha: “… If land has to be bought for constructing a temple, who decides who owns that land? Everybody knows the collector does it. He is the revenue officer. So if the collector verifies the ownership of a land which is being given as Waqf… what is wrong?… Waqf is charity, and charity can only be done with one’s own property.”
He claimed misuse of declaration of land as Waqf. “Somebody has gone to America for four months to study or to travel, and when he returns, his land has been declared Waqf. Somebody has gone to Delhi for business, his land is declared Waqf property… Arre aise nahin hota bhai (This is not how things are done). The collector has to be asked if it is government property or not… Many temples have been built (and) will be built, gurdwaras and churches have been built. Can they be built on government property?… Whether land declared Waqf is government land or not… it should be verified, and no one other than the collector can verify that.”
Practitioner of Islam clause
Challenging the clause that said that a person should be a practitioner of Islam for at least five years to create a Waqf, the Opposition said it was arbitrary, and “contradicts Islamic jurisprudence”. “Such conditions are discriminatory, particularly when similar religious endowment laws for other communities impose no such restrictions,” Congress MPs said in their dissent note.
“For instance, there is no restriction on a new convert to Islam dedicating property to a temple or mutt. Nor is there any restriction on the convert to any other religion in the manner that they want to deal with their properties, including dedication for religious purposes. Singling out Muslim converts for such treatment reeks of communal discrimination and would be unconstitutional as being violative of Articles 14, 15 and 300 A of the Constitution,” Owaisi said in his note.
Calling the provision “manifestly arbitrary”, the Trinamool Congress’s Kalyan Banerjee and Nadimul Haque said in their note: “Under the… Constitution, no person can be compelled to practise (their) own religion. If no person can be compelled to practise (their) own religion, then such persons cannot be debarred either to offer (their) property to God whether (they are) Hindu or Muslim or any other religion.”
Defending the provision, Shah said the Waqf law did not deal with properties donated by non-Muslims. “For that there is a law through Charity Commissioners. This is for those practising Islam.”
Inclusion of non-Muslims clause
The Opposition argued that allowing non-Muslims in the Waqf board was a “dilution” of Muslim representation and a violation of Articles 25 and 26 of the Constitution. Owaisi said that the provision “singles out Muslim charities for the creation of interference by nonbelievers, whereas all other statutes that create endowment boards comprising solely members of the religious community in question continue unaltered”.
Though the Court did not stay this provision, it said the Central Waqf Council shall not consist of more than four non-Muslim members out of 20, and in case of state Waqf boards, non-Muslim members could not exceed three out of the total strength of 11.
Shah underlined that there was no provision for any government interference in Waqf boards, and that the inclusion of non-Muslims was meant purely for ensuring administration of properties in accordance with the stated aims.
“There will be no non-Islamic members in the Waqf. Understand this clearly. Neither the ‘mutawalli’ (caretaker) will be non-Islamic, nor the waqif (endower of the property) will be non-Islamic. There is no provision for keeping a non-Muslim in the religious institutions that are run. We do not even want to do it… Where will non-Muslim members be appointed? In the Council and in the Board. What is their job? Their job is not to run religious activities. Their job is to see to it that the administration of the property… is running well or not, running according to the law or not, whether the donation given for the purpose of Islam, to feed the poor, uplift the poor… is it being used for that purpose or not,” Shah said.
The minister said the word Waqf originated from the principles of Islam and only those practising Islam can donate Waqf properties. “You are opposing that. You want non-Islam in Waqf. That is why we are saying Waqf can be done only by those practising Islam. Waqf is religious… not the Waqf boards or council. There are trustees in a trust. If it is a church, there will be Christians, there will be Parsis too. If there is a trust for Parsis, then there will be Hindus… How can we say that the charity commissioner should not be Muslim? In the Charity Commissioner Act, can a Muslim become a charity commissioner or not?… This is not religious… This is administrative work,” Shah said.
He added: “Can we have separate charity commissioners? Desh tod doge aap log (You people will break the country).”
Amit Shah had led Govt charge to defend changes to the Act. 
Share
