Challenge to the Waqf amendment: A complete run-down of the Union’s counter-affidavit and rejoinders by petitioners

TODAY, A DIVISION BENCH led by the Chief Justice of India Sanjiv Khanna and comprising Justices P.V. Sanjay Kumar and K.V. Viswanathan will continue hearing the arguments on challenges to the Waqf Amendment Act, 2025.

The Court had clarified on April 17 that the upcoming hearing will only be preliminary to assess whether the matter should be heard by it or referred to one of the High Courts. The Court will, thus, issue relevant directions or pass an interim order if required. Any substantive arguments will not yet be heard.

The hearing was fixed at the instance of Solicitor General Tushar Mehta, as he sought time to file an affidavit on behalf of the Union government and place on record some relevant documents. The petitioners were also told to file their rejoinders before today’s hearing.

The Centre has filed a 1332-page preliminary counter-affidavit supporting the Amendment Act. The affidavit, sworn by Shersha C. Shaik Mohiddin, Joint Secretary, Ministry of Minority Affairs, seeks to dismiss the petitions challenging the Act and opposes any interim stay on its provisions. It asserts that the Act is a legitimate and necessary legislative step towards enhancing transparency, regulating the management of the auqaf and curbing their misuse.

The affidavit provides a historical context, noting that the legislation has evolved through multiple enactments, and claims that the Act builds on this legacy to address contemporary challenges such as the exponential growth of the waqf properties and encroachments. It includes annexures of historical developments of waqf legislation to support the argument that the Act is a continuation of regulatory efforts, not a radical departure.

The Centre argues that the Act does not violate fundamental rights, including the right to religious freedom guaranteed under Articles 25 and 26 of the Constitution of India. Instead, it is designed to benefit the Muslim community by improving governance and accountability. It emphasises that the Act is focused on “secular” administrative reforms rather than interfering with the practices of any religion.

Constitutional validity and presumption of legality

The Union government points out that parliamentary enactments carry the presumption of constitutionality, and this presumption becomes a fortiori when the law has been made on the recommendations of a Joint Parliamentary Committee after an exhaustive exercise and extensive debate in the Parliament. It argues that the constitutional courts should not stay statutory provisions, either directly or indirectly, unless they decide the matter finally. The report of the JPC and the recommendations made to it by various parties, groups and individuals are also annexed with the affidavit.

It further contends that the Act is a valid exercise of legislative power under the Concurrent List of the Constitution, which allows both the Central and State legislatures to regulate charitable and religious institutions, including waqf. Therefore, the Court must dismiss the petitions challenging the Act since they lack merit and fail to demonstrate any specific instance of injustice.