Institute of Legal and Management Studies

The Supreme Court today (May 20) heard for over three hours the petitions challenging the Waqf(Amendment) Act 2025 on the question of passing interim orders.

During the hearing, the bench comprising Chief Justice of India BR Gavai and Justice AG Masih orally observed that for a stay of the statute, a strong case has to be shown.

"There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there," CJI Gavai said.

Senior Advocate Kapil Sibal, who opened the arguments for the petitioners, said that they have a strong prima facie case and asserted that "irreparable injury will be caused if the provisions are activated."

At the outset of today's hearing, Solicitor General of India Tushar Mehta submitted that the hearing was meant to be confined to three issues, which were flagged by the previous bench on April 16. However, the written submissions filed by the petitioners addressed more issues, the SG said.

"The court had earmarked three issues. We had filed our response to these three issues. However written submissions of the petitioner now extend to several other issues. I have filed my affidavit in response to these three issues. My request is to confine it to the three issues only," SG said. Senior Advocates Kapil Sibal and AM Singhvi, for the petitioners, opposed the SG's submission, and said that there cannot be a "piecemeal hearing."

Sibal said that the bench led by the then CJI Sanjiv Khanna had raised three specific issues, but did not restrict the hearing to those issues. Sibal stated that there is no such limitation imposed in the Court's limited order. SG Mehta, however, said that his reply was confined to three issues.

CJI Gavai, saying that he will have to go by what is on the record, asked the submissions to be started.

2025 Amendments designed to capture Waqfs : Sibal

Sibal started his arguments by saying that the 2025 amendments are designed to "capture waqfs through a process which is non-judicial." He took objection to the provision empowering a Government Officer to decide disputes whether Waqf properties have encroached on Government land. Till the dispute is decided, the property loses its character as a Waqf property.

"The government decides its own procedure, anybody can create disputes. This is one aspect," Sibal said.

Next, he said that the amendments nullified the principle "once a Waqf, always a Waqf."

Responding to the queries from the bench, Sibal said that under the previous law, non-registration did not affect the validity of the Waqfs and the only consequence was that the Muttawalli would have to pay some penalty. However, the 2025 amendment makes a complete departure to state that if there was no registration, the Waqf will no longer be recognised.

The bench recorded the submission as follows :

"From 1913 to 2023, though there was provision for registration of Waqf, no consequences were provided for non-compliance except removal of the Muttawalli."

As regards Waqf-by-user, Sibal said that registration was necessary after 1954. However, non-registration did not affect the character of the land as Waqf. Also, for registration of Waqf-by-user, the details of the creator must be given, which is not possible for many ancient properties. If the details of the creator are not given, the Muttawalli is liable to face imprisonment up to six months.

Next, Sibal said that if a Waqf property was declared as a protected ancient monument under the AMASR Act, that did not affect the ownership or use of the property as a Waqf. He cited the example of the Delhi Jama Masjid, though notified as a protected area, can be used as a Waqf. However, the 2025 Amendment (Section 3D) invalidates Waqf declarations of protected monuments, he contended. This is a violation of the fundamental rights under Articles 14, 25 and 26.

The condition in the 2025 Amendment (Section 3(1)(r)) that only a person practising Islam for 5 years can create a Waqf was challenged as "per se unconstitutional." Section 3E, which invalidates Waqfs created over scheduled tribe areas, was next flagged by Sibal, as it affected the fundamental rights of Muslims who belong to Scheduled Tribes.

Sibal next flagged the provisions allowing the nomination of non-Muslims to the Central Waqf Council and the State Waqf Boards. "Earlier, the Board members were elected and they were fully Muslims. Now they are all nominated. There will be 11 members, and 7 can be non-Muslims. This is violative of Articles 25 and 26. Management has to be done by the community," Sibal said. Even in the Central Waqf Council, as per the amendment, non-Muslims can be in the majority, Sibal said. However, the bench disagreed with this interpretation and said that only a maximum of two non-Muslims can be nominated, apart from the ex-officio members. "Even two is too many," Sibal said, pointing out that in none of the laws relating to Hindu endowments, persons from other religions are allowed.

Previously, the CEO of the Waqf Board had to be a Muslim. Now it can be a non-Muslim due to the amendment to Section 23. "This is an absolute departure and an attempt to take over Waqf properties," Sibal argued.

Sibal next highlighted the abolition of the office of the Survey Commissioner for Waqf properties. Giving the task of Waqf survey to the general district administration, which is already burdened, is counter-productive.

He flagged Section 36(7), which says that a Waqf property cannot be registered if it is in dispute or is Government property. That means anyone can stall the registration by merely raising a dispute. If the property is not registered, it means the Waqf Tribunal can't be approached for relief.

"If my property is not registered, I can't go to the tribunal. The consequence is- takeover the community's property and don't allow them a remedy. And if the aggrieved party goes to the tribunal, 10 years is passed- taken away. Perpetuity of waqf is lost," Sibal said.

As per Section 36(10), unregistered Waqfs can't invoke the remedies under the Act. "I can go nowhere! I can't file suit or proceedings. My fundamental right to litigate is lost. My property taken over and I cannot litigate. This is manifestly arbitrary."

Refuting the Centre's stand that the amendments are regulating the secular aspects of property administration, Sibal said, "The creation of Waqf is not a secular activity. It is a Muslim's property which he dedicates to God."

Dr.Rajeev Dhavan, Senior Advocate, spoke about the provision (proviso to Section 3A) which says that trusts created by Muslim persons will not come under the Waqf Act .This can impact many properties, as many Waqfs across the country have objectives similar to those of a trust. Dhavan also said that he has a Sikh person as a client, who wants to dedicate his property as Waqf, but is not allowed to do so by the latest amendment, as per which only Muslims can create Waqfs.

Senior Advocate Dr Abhishek Manu Singhvi, while reiterating most of the above points, placed reliance on the interim order passed by the Supreme Court in 2021, which suspended he implementation of the farm laws.

Singhvi also opposed the Centre's claims regarding the exponential increase in Waqf properties after 2013, and said that the entries in the Waqf portal, after it became active, were being misrepresented as a jump in the extent of Waqf properties after 2013.

Senior Advocate Chander Uday Singh made arguments regarding registration, saying that registration was never a condition for the validity of Waqf and this requirement was first introduced through the 2025 amendment.

Senior Advocate Huzefa Ahmadi referred to the amendment to Section 107 by which the Limitation Act is made applicable to Waqf Act. This means that it is impossible now to challenge the declaration of evacuee properties. Ahmadi also submitted that at least Section 3D of the Act required an absolute stay, as Waqfs, which are ancient mosques, will get invalidated by virtue of this provision.

Ahmadi also contended that the requirement of "five years of practising Islam" is arbitrary. He questioned how the authorities would determine whether someone is a practising Muslim - whether they would assess if the person offered namaz five times a day or scrutinise their personal habits, such as drinking.

Though Advocate Nizam Pasha requested time to make submissions, the bench did not allow, saying that more than enough time has already been taken by the petitioners.

The bench will hear the Union Government tomorrow.

On April 17, the Central Government had undertaken before the Court to not give effect to some provisions of the Act, which were questioned by the bench.

What has happened so far?

The matter was heard twice on April 16 and 17 in detail by a three-judge bench. On April 16, the submissions for the petitioners' side were led by Senior Advocate Kapil Sibal, who raised various concerns about the 2025 Amendment Act, including on the omission of 'waqf by user' provision. It was argued by him that it is impossible to prove registration documents for centuries-old mosques, dargahs etc, which are mostly waqf by user.

On the opposite side, the submissions were led by SG Mehta. He informed the Court that the 'waqf by user' provision is prospective, something that was also assured in Parliament by Union Minister Kiren Rijiju. When former CJI Khanna enquired from SG if the waqf by users' properties will be affected or not, SG Mehta replied, "if registered, no, they will remain as waqf if they are registered."

Also, concerns were raised also the inclusion of non-Muslim members in the Central Waqf Council and the State Waqf Boards. Former CJI Khanna asked SG Mehta if Muslims would be included in the Boards governing the Hindu religious endowments.

At the end of the hearing, the Court proposed interim directions that no properties declared by the Courts as waqf should be denotified. It also proposed that all members of the Waqf Boards and Central Waqf Council must be Muslims, except the ex-officio members. The Court's idea of proposing such interim directions is that no "drastic" change takes place during the hearing.

Since SG Mehta sought more time, the matter was again heard on April 17, wherein he made the statement that the existing waqf lands would not be affected and that no appointments would be made to the Central Waqf Council and the State Waqf Boards.The statement was taken on record by the Court and the matter was kept on May 5 for preliminary objections and interim directions, if any.

Background

Intervention applications have been filed by five BJP-led States: Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra, supporting the legislation. Recently, the State of Kerala has also filed an intervention supporting the 2025 Amendment.

AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, Samastha Kerala Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, TMC MP Mahua Moitra, Indian Union Muslim League, All India Muslim Personal Law Board, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, Communist Part of India, DMK etc., are some of the petitioners.

Common provisions challenged in all petitions

Omission of 'waqf by user' provision, inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board, limiting the inclusion of women members to two in the Council and Boards, pre-condition of 5 years as practising Muslim for create of waqf, diluting waqf-alal-aulad, renaming 'Waqf Act, 1995 to "Unifed Waqf Management, Empowerment, Efficiency and Development," appeal against the Tribunal's order, allowing Government to disputes regarding encroachment of government property, application of Limitation Act to Waqf Act, invalidating Waqf created over ASI protected monuments, restrictions on creating Waqfs over scheduled areas etc., are some of the provisons under challenge.

Case Details: IN RE THE WAQF (AMENDMENT) ACT, 2025 (1)|W.P.(C) No. 276/2025 and connected matters