Defending the Waqf Amendment Act, the Centre told the Supreme Court on Tuesday that while Waqf is an Islamic concept, it does not constitute an essential religious practice and is not protected as a fundamental right under the Constitution.

“Waqf is undoubtedly an Islamic concept, but it is not essential to the practice of Islam,” Solicitor General Tushar Mehta stated.

“It does not fall under the category of fundamental rights.”

He emphasized that the state has a duty to safeguard public property for all 140 crore citizens and prevent its illegal diversion.

Mr. Mehta pushed back against what he called a “false narrative” that the new law forces individuals to furnish documents or that Waqf properties are being arbitrarily seized.

“Waqf is a charitable institution. The Waqf Boards perform secular administrative duties,” he said.

Responding to objections over the inclusion of non-Muslim members on Waqf Boards, the Solicitor General asked, “How does the presence of two non-Muslim members impact religious activity? The law does not interfere in religious practice.”

On the petitioners' claim of representing the Muslim community, Mr. Mehta pointed out that the government received 96 lakh representations, and the Joint Parliamentary Committee (JPC) conducted 36 sittings, engaging with various Muslim organizations before submitting a detailed report.

“This Act was passed after extensive public input and unprecedented parliamentary debate,” he said.

Addressing the concept of 'waqf by user'—where long-term usage is claimed as a basis for waqf—the Centre argued that this does not imply ownership. “If a government building is being used in this manner, the government has every right to examine ownership,” Mr. Mehta said.

However, he clarified that while revenue authorities may assess land classification, they cannot decide title ownership.

Chief Justice BR Gavai, who is heading the bench along with Justice AG Masih, raised concerns that an administrative inquiry by a collector might effectively result in the government taking over Waqf property.

Mr. Mehta clarified that title claims must still be settled through a court of law.

On the requirement that only a practicing Muslim for five years can create a Waqf, Mr. Mehta said even under Islamic law, one must establish their identity as a Muslim. “This does not mean daily namaz or abstaining from wine, but the person's belief and conduct matter,” he explained, adding that confusion has occasionally arisen over whether a property qualifies as Waqf.

Drawing distinctions with Hindu endowments, Mr. Mehta noted that Hindu religious institutions are governed by far more intrusive laws. “Hindu endowments are strictly religious, while Waqf properties include secular institutions like schools, madrasas, orphanages, and even dharamshalas.”

For example, he said, under the Bombay Public Trusts Act, even temples can be administered by individuals of any religion.

Mr Mehta emphasized the bifurcation of roles in Waqf management: the Sajjadanashin (spiritual head) and the Mutawalli (manager). “The current law deals only with the administrative role of Mutawalli and does not interfere with religious or spiritual practices.”

Rejecting claims that the law violates Article 25 of the Constitution, which guarantees religious freedom, Mr Mehta referred to the 1956 Hindu Code Bill. “That legislation redefined Hindu personal laws, affecting several communities. No one objected then that Muslims were left out.”

He also cited the Tamil Nadu Hindu Religious and Charitable Endowments Act, under which even heads of mathas can be removed if they violate rules. “Yet here, we are debating whether minor administrative changes in Waqf Boards infringe fundamental rights,” he said.

Senior advocate Kapil Sibal, appearing for one of the petitioners, accused the government of using the law to seize Waqf lands. “The law is structured to enable the government to take over Waqf property without due process,” he said.

He criticized the five-year practicing Muslim requirement, arguing that it violates personal liberty. “If I am on my deathbed and wish to dedicate my property as Waqf, I must first prove I was a practicing Muslim for five years. That is unconstitutional,” he said.

Mr. Sibal also warned that under the amended law, any village panchayat or individual can challenge Waqf status, leaving it to a government official to adjudicate.

“The same government that claims the land decides the outcome. It makes the officer a judge in his own cause,” he added.

He asserted that Waqf is a matter of private property and cannot be treated as state property. “This is about my personal property being taken away under a legal mechanism.”

Drawing comparisons with temples, he argued that the state cannot fund religious institutions like mosques or burial grounds.

“There is no equivalent of chadhava or massive donations in mosques as there are in temples,” he said. Responding to the Chief Justice's observation that some dargahs do receive government grants, Mr. Sibal clarified that he was referring specifically to mosques.

Chief Justice Gavai emphasized that courts presume laws passed by Parliament to be constitutional unless proven otherwise. “We cannot intervene unless there is a glaring unconstitutionality,” he said.

The hearings continue as the bench examines the constitutional validity of the amended Waqf Act in light of the arguments presented.