KERALA CLERICS MOVE SC AGAINST WAQF AMENDMENT, CITE THREAT TO MUSLIM PROPERTIES

A prominent body of Sunni Islamic scholars and clerics based in Kerala, the Samastha Kerala Jamiatul Ulema, has approached the Supreme Court by filing a writ petition challenging the constitutional validity of the Waqf (Amendment) Act, 2025, which received Presidential assent just a day ago.

The newly enacted amendments—introducing significant changes to the Waqf Act, 1995—pertaining to the nature and governance of Islamic charitable endowments, are alleged to infringe upon several fundamental rights. The petition cites violations of Article 14 (equality before the law), Article 25 (freedom to practice religion), and Article 26 (right of religious denominations to manage their own affairs). The amendments are also described as arbitrary and discriminatory in nature.

The petitioner organization expresses serious concern that the cumulative effect of these amendments could result in the Muslim community being deprived of substantial portions of waqf properties. It further argues that instead of improving the governance of waqf institutions, the amendments undermine the core principles of waqf, eroding the very foundation of the institution.

The petitioner challenges the Waqf (Amendment) Act, 2025 on multiple constitutional and legal grounds. One key objection is the elimination of 'Waqf by user' through the amendment to Section (r), which previously recognized waqfs without formal deeds—many of which have existed for centuries. The deletion, the petitioner argues, opens the door for these properties to be claimed as private or government land, despite long-standing religious usage and judicial recognition, including in the Ayodhya-Babri Masjid case.

Another major concern is the mandated inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, which the petitioner argues infringes upon the Muslim community’s constitutional right under Article 26 to manage its own religious affairs. The removal of the requirement that the CEO of the Waqf Board must be Muslim is also challenged. The petition further objects to Section 3C, which bars government properties declared as waqf from being treated as such until a government-appointed officer adjudicates the matter. This, it is argued, creates a conflict of interest and allows indefinite delays without any prescribed timeline, violating principles of impartial adjudication and interim relief in civil law.

The petitioner also opposes Section 3B, which imposes extensive documentation requirements on waqfs, including the name, date, and mode of creation—information that is often unavailable for waqfs established over a century ago. This is alleged to be an attempt to make registration unworkable.

Additional objections include the restriction that only practicing Muslims of at least five years can create waqfs, which is criticized as vague and arbitrary. The prohibition of waqfs over ASI-protected monuments (Section 3D) and the restrictions imposed on Muslim members of Scheduled Tribes from creating waqfs (Section 3E) are also contested as unconstitutional encroachments on religious and property rights.