Waqf row: Centre opposes SC blanket stay on law with presumed validity

The Centre on Friday defended the amended Waqf Act in the Supreme Court and opposed any "blanket stay" by the court on a "law having presumption of constitutionality passed by Parliament".

In a preliminary 1,332-page affidavit, the Centre urged the top court to dismiss the pleas challenging the validity of Waqf (Amendment) Act, 2025, pointing out a "mischevious false narrative" surrounding certain provisions.

"While this court would examine these challenges when the cases are heard, a blanket stay (or a partial stay) without being aware of the adverse consequences of such an order in a generality of cases (even on members of the Muslim community itself) were the petitions to be unsuccessful, would be uncalled for, especially in the context of the presumption of validity of such laws," it argued.

The Centre, as a result, urged a bench headed by Chief Justice Sanjiv Khanna, set to hear pleas for passing interim directions on May 5, not to stay the law's provisions.

The government claimed a "shocking increase" of 116 per cent in the waqf properties since 2013  It also opposed the arguments over the necessary registration of "waqf by user" properties till April 8, saying if the provision was interfered with by an interim order, it would amount to "creation of legislative regime by judicial order".

The affidavit rebutted the submissions that Muslims might be in the minority in the Central Waqf Council and state Waqf Boards due to the change in the law.

The law is a "valid and lawful exercise of legislative power", one that strengthens the institution of waqf and aligns it with constitutional principles, and facilitates the wholesome realisation of waqfs in the contemporary era, it argued.

The Centre contended it was settled position in the law that constitutional courts would not stay a statutory provision, either directly or indirectly, and decided the matter finally.

"There is a presumption of constitutionality that applies to laws made by Parliament," it said.

The affidavit added, "Considering the settled constitutional principles of presumption of constitutionality, intrinsic value behind democratic processes and high threshold to be met before passing any interim orders, it would be in the fitness of things to decline any interim orders as was done in the original petitions."  Referring to the "reported misuse" of waqf provisions to encroach private and government properties, the affidavit said right before even Mughal era, pre-independence era and post-independence era, the total of waqfs created was 18,29,163.896 acre of land.

"Shockingly after 2013, the addition of waqf land is 20,92,072.536 acres," it said.

On the amendment relating to "waqf by user", the Centre said it was "too late in the day for anyone to argue" that though it claims to be a "genuine waqf" it still wasn't registered.

"If the effect of the section saving only registered waqf by user' is interfered with either directly or indirectly by any interim order, it will not only defeat the object and provision itself, it will result in the following anomalies which the order of any court cannot lead to -- creation of legislative regime by judicial order (and that too an interim order) wherein Parliament has by law, consciously taken it away," it said.

Countering the claims that Muslims would be in minority due to inclusion of non-Muslims in waqf bodies, the Centre said only four non-Muslims of the total 22 could be part of the Central Waqf Council.

"In waqf boards of each state, there is a possibility of maximum three members who can be non-Muslims (if the ex-officio member happens to be a non-Muslim) out of 11 members," it said.

The Centre said when the legislature has enacted a law, presumed to be constitutional, replacing it would be "impermissible".

"Any order in the nature of one sought by the petitioners, would amount to a stay of the amendment act, validly passed by Parliament at an interim state, which is an exercise impermissible within the confines of judicial review envisaged under the Constitution," it said.

By removing major legal issues, the Centre argued, the Act reaffirmed the identification, classification and regulation of waqf property by subjecting it to legal standards and judicial oversight.

The law ensures no person is denied access to courts, and the decisions affecting property rights, religious freedom, and public charity are made within the bounds of fairness and legality, it added.

"Through these changes, the Amendment Act brings judicial accountability, transparency, and fairness," the affidavit said.

The government also denied the argument that the law violated fundamental rights, and said it respected the essential religious practices of the Muslim community by leaving matters of faith and worship untouched, while legitimately regulating the secular, administrative facets of waqf management as authorised by the Constitution.

"Parliament has acted within its domain to ensure that religious endowments like waqf are managed in a manner that upholds the trust reposed in them by the faithful and the society at large, without trespassing on religious autonomy," it said.

On April 17, the Centre assured the top court it would neither denotify waqf properties, including "waqf by user", nor make any appointments to the central waqf council and boards till May 5.