Institute of Legal and Management Studies

The Supreme Court on Thursday (May 22) reserved interim order on the plea to stay the operation of the Waqf (Amendment) Act 2025.

A bench of Chief Justice of India BR Gavai and Justice AG Masih heard the matter on the point of interim order across three days. During the arguments, CJI Gavai orally said that the requirement of registration of Waqfs has been there under the previous laws of 1923 and 1954.

The petitioners had begun their arguments on May 20, which was followed by the Union's arguments on May 21.

Today, Solicitor General of India Tushar Mehta started by addressing the concerns about Section 3E, which bars the creation of Waqf over lands falling under Scheduled Areas. SG said that this provision was created for the protection of Scheduled Tribes.

When Chief Justice of India Gavai asked about the rationale behind this provision, SG said that the creation of Waqf is irreversible and this might prejudice the rights of the vulnerable tribal population. "JPC says tribals may follow Islam but they have their separate cultural identity," Mehta said. Justice Masih however expressed disagreement, saying, "Does not appear to be correct. Islam is Islam! Religion is the same."

SG said that even if that is the case, it is not a glaring ground to stay the Act. "I am unable to go purchase the land of tribals because the state law restricts. If I create a waqf and the mutawalli does what he wants.... Please bear in mind if the provision is so atrocious that it needs to be stayed," he submitted.

On the bar on non-Muslims creating Waqfs

Next, Mehta addressed arguments regarding the provision barring non-Muslims from creating Waqfs. He pointed out that only in the 2013 amendment, non-Muslims were given such rights. In the 1923 law, they were not allowed, as there were concerns that this could be used as a device to defraud creditors.

In any case, non-Muslims can make donations to waqfs, SG said. "If I am a Hindu, I can donate to waqf. If I am a Hindu and really want to create a waqf, I can create trust," he said.

Regarding the condition of 5-year practice of Islam to create waqf, SG said that the Muslim Personal Law (Shariat Application) Act also require a person to make a declaration regarding the practice of religion. The condition of 5 years is not intended to defeat the rightful claims of any person, he claimed.

SG also mentioned that earlier, when petitions challenging the Waqf Act 1995 were filed in the Supreme Court, they were asked to go to the High Courts, and those parties have raised an argument that similar treatment should be given to the petitioners challenging the 2025 Amendment Act.

SG reiterated that the provisions are not "atrociously unconstitutional" so as to warrant a stay at the interim stage.

Senior Advocates Rakesh Dwivedi (for State of Rajasthan), Ranjeet Kumar (for Haryana), Maninder Singh (Odisha) also made brief submissions supporting the Amendments.

Dwivedi said that the concept of 'waqf-by-user' was introduced in the Indian soil by a single sentence in a judgment of the Privy Council. Dwivedi also said that it was untenable to make arguments by comparing a Parliamentary law with certain State laws on Hindu religious endowments. Kumar said that in Rajasthan, a Waqf claim was made over a 500-acre land given for mining purposes. Kumar also represented a tribal organisation that supported the 2025 amendments.

Rejoinder by petitioners

Senior Advocate Kapil Sibal refuted SG's submission of yesterday that the proviso to Section 3C only enables the Government to change the revenue entries and that the title or the possession of the Waqf property would not be affected.

Sibal said that the language of the provisions is very clear - that the property cannot be regarded as a Waqf till the designated Government officer completes enquiry on whether there is encroachment of government property. When the language of the statute is so, neither the submission of the Solicitor General nor the affidavit of the Government can change its meaning, Sibal said.

Sibal also pointed out that as per the proviso to Section 3(1)(r), waqf-by-user, even if registered, will not be a waqf if there is a dispute regarding ownership or if it was a government property. The effect of this provision is that all waqf-by-user properties are de-recognized even without any determination of the dispute.

Registration required since 1923, says CJI; Non-registration fault of States, says Sibal

At this point, CJI BR Gavai said that the registration was not a new requirement and was mandated in previous enactments as well.

"We have seen the Acts from 1923. You are right technically that in 1923, there was no provision for registration. But information about the Waqf had to be provided. Continuously from 1954, registration was required. The 1976 report said why registration is necessary. From 1923 till 2025, over a period of 100 odd years, if the scheme of various enactments had emphasised on registration, and somebody has not registered..." CJI BR Gavai said.

Sibal said that in Delhi, only two Waqfs are registered. In Jammu and Kashmir and Telangana, no Waqfs are registered. "Why are they not registered? Because of the failure of the State Governments from 1954 onwards. And because of that, all community is going to be penalised," Sibal said.

The survey commissioners did not do their job of surveying the properties and registering the Waqfs, and the community members are facing the punishment, Sibal argued.

"This is a State responsibility by the statute, which they have not discharged. They say, since the State has not discharged their duty, you have no right. They cannot take advantage of their own wrong. This is totally unacceptable," Sibal said.

Sibal also said that Section 3D of the Act was never part of the draft approved by the JPC.

Senior Advocate Rajeev Dhavan countered the SG's argument that Waqf was not an essential religious practice. This argument is contrary to the JPC's report and the Union's own counter, he said, asserting that charity is integral to Islamic faith. "No outside authority has any right to say that these are not essential parts of right," Dhavan said.

Senior Advocate Dr AM Singhvi argued that the registration requirement of the Act, as per amended Section 36(1), is creating a "vicious circle", as waqf-by-user, which are now abolished, cannot be registered. How can something which is abolished be registered? he asked.

The provision further says the property cannot be registered if the Collector thinks that it is government property. Sections 36(1), 36(7A), 36(10) were thus creating a "vicious circle", he argued.

There is no other Act which makes a condition that a Muslim must profess religion for 5 years "without contrivance", Singhvi said. This is imposing a reverse burden of proof. Such provisions are not applicable to any other faith.

Senior Advocates Huzafa Ahmadi and AM Dhar also made brief submissions for the petitioners. Ahmadi focused on Section 3E, saying that it affected the rights of a Muslim belonging to Scheduled Tribes. If the object was the protection of tribals from illegal transfer, this provision does not subserve it. The only object that is subserved is that a Muslim tribe is singled out and prevented from making a dedication. Ahmadi also raised concerned about the application of the Limitation Act and its impact on evacuee property declarations. Dhar said that the concept of Waqf has Quranic origins and cited certain verses.

As the bench was about to rise, an intervenor from the respondent side made a brief submission, saying that she was representing a villager from Tamil Nadu, whose entire village had been declared as a Waqf land, including a Chola-era temple existing there. She requested that her submissions be also be taken on

Brief summary of Union's arguments so far

Yesterday, Solicitor General Tushar Mehta, for the Union, vehemently countered the petitioners' argument on the challenge to Section 3(C).

Mehta submitted that the argument was misleading and false because during the inquiry, the status of waqf is only "suspended" and for the title of the property, the due course has to be adopted through the law, which is essentially filing a title suit. He added that Section 3(C) merely allows the revenue officer to correct revenue records.

Further, SG Mehta had said that just because a designated officer, who is appointed by the State Government, is to hold an inquiry, that by itself does not become prejudicial unless personal bias can be shown.

SG Mehta also countered the petitioners' argument that documents were needed to register centuries-old waqfs, whereas the Mussalman Wakf Act 1923, the 1954 Act all provided for the "description" of waqf as a requirement for registration.

By and large, SG Mehta submitted that waqf is not an essential part of Islam and since waqf by user became statutorily permissible in the 1954 Act, the right can be taken away through a legislative mandate. He had also said that the Central Waqf Council and the State Waqf Board perform secular functions, and it is wrong for the petitioners to conclude that the majority of non-Muslims have been appointed, whereas non-Muslims are still in minority.

Brief summary of petitioners' arguments

On May 20, 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 issue flagged was 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