Institute of Legal and Management Studies

The Supreme Court today (May 21) heard for over three hours the arguments made by the Union Government opposing any interim stay of the Waqf Amendment Act 2025.

A bench comprising Chief Justice of India BR Gavai and Justice AG Masih heard the arguments.

Union's arguments

Solicitor General of India Tushar Mehta started by saying that the Amendment Act was passed after detailed deliberations by the Joint Parliamentary Committee, which took the views of various stakeholders across the country.

The petitioners had raised concerns about the proviso to Section 3C of the Act, which says that a "property shall not be treated as waqf property" till a designated officer completes an enquiry on whether it was encroaching upon Government land. Regarding this, Mehta said that this proviso only means that an entry will be made in the revenue records, and said that the question of title will be only determined by the Court. So, there is no basis for the argument that the Government can unilaterally take over the waqf land, he said.

"The only consequence is revenue records will be corrected...The argument repeated by them is that this provision allows the wholesale takeover of the waqf. It is misleading. Designated Officer is not making a final determination of property- only the revenue records will be updated. It is only that through revenue records, it will come to notice that the property belongs to the Government... It will be open for affected parties to approach the waqf tribunal, final determination of title would be decided by tribunal or in appeal by the High Courts," SG said.

"The picture that is being painted is once the Collector initiates enquiry, it ceases to be waqf and once inquiry is completed, the property will be taken over," CJI Gavai said. SG said that this was a "false and misleading narrative."

"The revenue authorities decide whether it is government land or not. But it is only for the purpose of revenue records. They cannot decide the title. It is not final. The only consequence of the exercise undertaken by the officer under 3C will be limited to correcting revenue records. I have said this on affidavit," SG said.

"So it is only a paper entry?" CJI asked.

"It will be a paper entry. But if the government wants ownership, it will have to file a suit for title," SG replied.

SG said that only the character of Waqf in the revenue records is suspended due to Section 3C.

When CJI Gavai asked if the property could be alienated in such a scenario, SG said it cannot be, as the status quo will have to be maintained.

"In your view, according to proviso, the possession will not be taken unless considered by competent court?" CJI Gavai asked.

"Possession cannot be taken over by Section 3 (C). Theirs is a deliberately misunderstood argument. They said it's manifestly wholesale capturing- generally, mylords don't entertain a petition till the statute operates. Once the statute operates, its effect will come clear. There cannot be an academic challenge," SG said.

SG refuted the petitioners' argument that Section 3C enabled the Government to act as a judge in its own cause. In this regard, the SG referred to a Supreme Court judgment in Crawford Bayley vs Union of India upholding the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 1971, which enabled the Government to appoint the Estate Officers to order eviction.

Regarding the question of registration, SG Mehta said that the Mussalman Wakf Act 1923 had a provision (Section 3) which mandated the registration of Waqfs. He said that the provision did not mandate the production of any deed and only knowledge about the origin needed to be given.

Responding to the petitioners' argument that the only consequence of non-registration was penalties on the muttawalli, SG said, "According to them, the consequence was muttawalli will not continue, another will come and he will again be fined. This is an absurd way of reading a statute."

SG said that there is a "narrative being built" that where do we get documents for age-old Waqfs. Mehta said that the 1923 Act itself had mandated the furnishing of the description of waqfs. Mehta said similar provisions were there in the 1954 Act as well.

"Now it is not open for anyone to say Waqf need not be registered," SG said after taking the bench through the previous enactments. He said that the new Amendment also allows a window of six months for registration. "If missed, then it can be done now also," he said.

SG also said that there was a lot of "mischief" going on in the name of Waqf-by-user, as there are cases across the country of government properties being claimed. He said that the abolition of Waqf-by-user is prospective, and the existing Waqfs won't be affected if they are registered.

"Now a false narrative is being made that Waqf is being snatched. This is nothing but the country being misled. Waqf by user is not allowed prospectively with some exceptions. One, it should be registered. There cannot be any mechanism just because someone gets up and says there is waqf till 2024 and not registered. It will be like legitimising what was punitive for 102 years.. and the other exception is for govt properties," SG said.

SG argued that waqf-by-user is not a fundamental right and is only a statutory recognition, which can be taken away.

Waqf not an essential practice of Islam

"Waqf is an Islamic concept. But it is not an essential part of Islam..Waqf is nothing but just charity in Islam," SG argued. Charity is recognised in every religion, and it cannot be regarded as an essential tenet of any religion.

"Suppose majority of Muslims are not financially sound, would they cease to be Muslims? That's the test laid by SC. Many countries don't have waqf as a concept and there are trusts. Waqf per se is not an essential religious practice," SG said. He quoted Dr. Ambedkar's speech on the distinction between spiritual and social aspects of religion and cited the John Vallamotom case on essential religious practices.

Waqf Boards are performing secular functions

SG next stated that Waqf Boards are performing secular functions. "Waqf Board discharges only secular function. Managing properties, register maintenance, and auditing accounts. Purely secular. There is a power to regulate secular practices in a religion. Administration of property has to be in accordance with law." SG said. Therefore, having two non-Muslims on the Board will not affect any religious practice.

"Giving maximum two muslim members- would it change character? Waqf Board is not involved in religious character. In Hindu endowments, the commissioner can go inside the temple and appoint Pujaris. But the Waqf board does not touch upon any religious functions," SG said.

"Hindu religious endowments are fully religious. Waqfs can be anything, can be a mosque, Dargah, an orphanage, school. There are several secular and charitable organisations being run. Therefore, there can a minority participation of non-Muslims also, since Waqf deals with non-Muslims also. Non-Muslims can be aggrieved, affected or beneficiaries of waqfs. That is the reason why non-Muslims have been included." SG said. SG refuted the petitioners' arguments that the Amendments allow non-Muslims to be in the majority in State Waqf Boards and Central Waqf Council, and asserted that the maximum number of non-Muslims is 2.

SG said that in Maharashtra, Waqfs were at one point being governed by the Charity Commissioner under the Bombay Public Trust Act. The Charity Commissioner can be a person belonging to another religion and can deal with Hindu or Jain public trusts also. Hindu endowment laws are only in some states, and in States like Maharashtra, Gujarat, Madhya Pradesh etc., Hindu trusts are governed by the Charity Commissioner, who need not belong to the same religion.

SG said that there are several judgments holding that muttwalli is performing only a secular managerial function and was not a religious officer.

"Sajjada nasheen is a spiritual office, and muttawalli is a secular manager. The Waqf Board only deals with the muttawalli," SG said, referring to judgments.

Comparison with Hindu religious endowment inappropriate

SG argued that the petitioners' comparing Waqf Boards with Boards managing Hindu Endowments was inappropriate.

"This comparison why not for Hindus or Christians is by principle bad. When the Hindu Code Bill came, personal rights were taken away- No arguments were raised because Muslims were governed by their Shariah Act," SG said. He stated that such comparisons were deprecated by the Supreme Court in Pannalal Bansilal Pitti & Ors. Etc vs State Of Andhra Pradesh.

Regarding Section 3D

SG Mehta then addressed arguments regarding Section 3D, which bars Waqf declaration over protected ancient monuments. He said that the provision was introduced taking note of the concerns raised by the ASI.

Regarding Section 3E (bar on creation of Waqfs over Scheduled Tribe areas), SG said that the Constitution itself mandates special protection for scheduled areas. He said that no Scheduled Tribe member was before the Court challenging the provision and the challenge was only "academic."

The arguments will continue tomorrow.

In yesterday's hearing, Solicitor General Tushar Mehta had requested that the hearing be confined to three issues flagged by the previous bench on April 16. Nevertheless, the petitioners' side presented their arguments in length for more than 2 hours.

Brief summary of petitioners' arguments

Yesterday, from the petitioners' side, Senior Advocate Kapil Sibal, Senior Advocate Dr Abhishek Manu Singhvi, Senior Advocate Dr Rajeev Dhavan, Senior Advocate CU Singh, Senior Advocate Huzefa Ahmadi and Advocate Nizam Pasha argued.

While Sibal, upon a conjoint reading of various provisions of the 2025 Act, submitted that the amendment is an attempt to "capture waqfs through a process which is non-judicial," Singhvi countered the claim of the Central Government that there has been an exponential increase in waqf properties after 2013. He submitted that the "exponential" increase is due to the updation exercise on the Waqf portal.

Sibal had also pointed out that registration was necessary since 1954 and in the subsequent Acts, but there was never a consequence of non-registration to the extent that the nature of the waqf changes. He had said that the only consequence was that the Muttawalli responsible for registration would be liable to face imprisonment of 6 months and a fine. This was also reiterated by Singh.

Another conundrum that emerged yesterday was whether all waqfs which are otherwise protected monuments, even under the Places of Worship Act, would lose their status as a consequence of Section 3(D), which invalidates the waqf declaration of protected monuments.

Dr Dhavan had flagged a proviso to Section 3(A) whereby the trusts created by Muslims will not come under the Waqf Act. Ahmadi had referred to the deletion of Section 108 on evacuee property and the application of the Limitation Act as per Section 107.

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

#SupremeCourt to continue hearing today petitions challenging the Waqf Amendment Act 2025.

A bench of CJI BR Gavai and Justice AG Masih will consider the pleas for interim orders. #SupremeCourtofIndia #WaqfAmendmentAct https://t.co/qKX0p58O62 pic.twitter.com/gYO0orafSd