Kerala Waqf Board Opposes Waqf Amendment Act In Supreme Court, Says It Subverts Secularism & Violates Fundamental Rights

The Kerala State Waqf Board has filed a preliminary reply in the Supreme Court opposing the Waqf Amendment Act 2025, contending that the law was unconstitutional as it "subverts the principles of secularism and violates the fundamental rights of citizens."

The Board accused the Government of India of "following a pick and choose policy" against some religions to control their properties.

"It is respectfully submitted that all religions in the country are not having laws with regard to the management of properties dedicated for religious purpose and recently the Government of India is following a pick and choose policy against some religions and trying to control their properties," the Board said.

The State Board detailed its objections to the amendments made to the Waqf Act, 1995 - such as the omission of the waqf-by-user, condition of 5 year practice of Islam to create Waqfs, allowing the inclusion of non-Muslims in Waqf Boards, allowing Government officials to decide disputes regarding encroachment of Government properties, changes to Waqf Al Aulad, bar on non-Muslims on creating Waqfs etc., which are challenged in the other petitions.

Regarding the proposal to include non-Muslims in the Boards and the Central Waqf Council, the Kerala Board said that it will violate Article 26 of the Constitution, which confers the fundamental right on a religious denomination to manage its own affairs. Since the Waqf Boards are primarily dealing with religious endowments, non-Mulsim persons may not be in a position to take proper decisions concerning such matters.

"From the amendments it can be seen that this law has not been prepared with the intention of strengthening the system of Waqf. Since the fund from various Auqaf are utilized for the functioning of the Boards, the number of representatives of Mutawallis should be increased and elected democratically," the State Board said.

The Kerala Waqf Board also took particular objection to the omission of Section 40, which had conferred powers on the Waqf Boards to decide whether a property is Waqf land or not. It said that several decisions taken by the Waqf Boards under Section 40 have been upheld by various High Courts and the Supreme Court. Conferring this power to District Collectors will make the process lengthy and complicated, and create the possibility of losing Waqf lands, the Board stated.

The Board further took objection to the taking away the power of Waqf Survey Commissioners and entrusting the same to the District Collectors.  It is contended that this move will hamper the surveys of Waqf properties as the District Administration may not be able to carry out this task effectively amidst their other assignments.

The Kerala Board also said that the Joint Parliamentary Committee did not visit Kerala and consult the major stakeholders in Kerala and alleged that it showed a discriminatory attitude.

The State Board objected to the inclusion of an appeal provision against the Waqf Tribunal's decisions, saying that it will delay the adjudication. The new sub-section added to Section 61 will force the Muttawalli to act as per the instructions of the District Collector, as violation can lead to imprisonment. The appliation of the Limitation Act to the Waqf Act will prejudice the recovery of alienated properties.

The reply filed through Advocate Subhash Chandran KR stated :

"Currently, the clauses in the impugned Act have been included in a way that completely subverts the basic principles of secularism and fundamental rights of the citizens. The above amendments are completely unilateral and takes away the powers of the State Waqf Boards and the State Governments. The amendments are proposed in such a way that all information regarding the waqf, its properties, revenues from all sources and control of Mutawallies of Auqaf are vested with the Central Government. The provisions of the amended Act are aimed at regulating, data collection and interference of non- Muslim persons in decision-making in a manner that no other religious denomination. These amendments, which seeks to undermine the fundamental rights guaranteed by India's governance structure, points to some ulterior motives."

On April 17, the Supreme Court, while recording the Centre's undertaking not to act on some of the contentious provisions of the Act, had allowed the State Governments and State Waqf Boards to file their responses.

Seven states- Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana, Gujarat and Maharashtra - have filed intervention applications in the Supreme Court supporting the 2025 Amendment Act.