Manas Dasgupta
NEW DELHI, Apr 16: Hearing a bunch of petitions challenging the amended Waqf Act, the Supreme Court on Wednesday asked tough questions to the Centre while also raising some queries with the petitions but its intention to issue an interim order on the just-adopted law was put on hold at the last minute after the Centre and the states requested more time to marshal their arguments on the three points the court raised.
The court also flagged the provision to include non-Muslims on the Central Waqf Council and asked the government if it would allow Muslims to be part of Hindu endowment boards. The three-judge bench led by the Chief Justice of India Sanjiv Khanna and comprising Justice Sanjay Kumar and Justice KV Vishwanathan will hear the matter again on Thursday.
“We are told Delhi High Court is built on Waqf Land… We are not saying all Waqf by user is wrong, but there is genuine concern,” Chief Justice Sanjiv Khanna told Senior Advocate Abhishek Manu Singhvi, appearing for the petitioners.
“How will you register such Waqfs by user who have been there for long? What documents will they have… It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have gone through privy council judgments as well. Waqf by user is recognised. If you undo it, then it will be a problem,” the Chief Justice asked the Solicitor General Tushar Mehta, appearing for the Centre.
The top court also expressed concern about the violence sparked during protests, particularly in West Bengal. “Violence over the protests against Waqf Act is very disturbing,” the bench said. The bench was hearing 73 petitions challenging the new Waqf Act, which has sparked protests in several parts of the country, while several BJP-ruled states have also filed petitions in favour of the act claiming that the amended act would be for the benefit of the poor Muslims and would harm none.
At the end, the judges raised three points, indicating their intention to pass an interim order, putting some provisions of the amended law on hold. For all three procedures — on which the rules have been amended — the court expressed its intention to maintain status quo.
Whatever property has been declared as Waqf by the user, or declared by the court, will not be notified, the judges said. Secondly, the Collector can continue the proceedings, but the provision will not be applicable. Third — while ex-officio members can be appointed regardless of religion, others should be Muslims, the judges said. “Normally we don’t pass such interim orders, but this is an exception,” said Justice Khanna, pointing out that the hearing can go on for six to eight months.
At this point, the centre and the states objected against an interim order and sought more time. The court said it was ready to allot another half-hour to let them have their say, but after some back and forth, the matter was postponed since it past 4 pm and fixed the resume hearing for 2 pm on Thursday.
The Supreme Court has repeatedly made it clear that it would not trespass into the domain of the legislature — the separation of powers being made clear by the Constitution. But as the final arbiter on issues involving Constitution, it has agreed to hear the petitioners, who insist that the amended law tramples on several fundamental rights, including the right to equality and the right to pursue religious practices.
Among those who challenged the law are leaders of the opposition parties including the Congress, Aam Aadmi Party, DMK, CPI and BJP ally Janata Dal United. Religious organisations and NGOs like Jamiat Ulema-e-Hind and the All-India Muslim Personal Law Board have also filed their objections. Some have sought the cancellation of the law and others have requested for a freeze.
On the other hand, six BJP-ruled states — Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh and Assam — filed separate pleas highlighting the potential administrative and legal ramifications if the Waqf (Amendment) Act is struck down or altered.
The government said that crores of poor Muslims will benefit from this legislation, and in no way does it harm any single Muslim. Minority Affairs Minister Kiren Rijiju said the legislation did not interfere with the Waqf properties, adding that the Modi government works with the vision of ‘Sabka Saath and Sabka Vikas.’
Senior Advocate Kapil Sibal, appearing for one of the petitioners, said many provisions in the new law violate Article 26 of the Constitution, which guarantees the freedom to manage religious affairs. Mr Sibal also flagged the powers the new law gives to the Collector. He argued that the Collector was a part of the government and if he plays the role of a judge, it was unconstitutional.
Mr Sibal then mentioned ‘Waqf by user’ – a provision under which a property is treated as Waqf based on its long-term use for religious or charitable purposes, even without formal documentation. The new law adds an exemption: this won’t apply to properties that are in dispute or are government land. Mr Sibal said that ‘Waqf by user’ is an integral part of Islam. “The problem is, if a Waqf was created 3,000 years ago, they will ask for the deed,” he said.
Senior Advocate Abhishek Singhvi, also appearing for a petitioner, said that 4 lakh Waqf properties out of the total 8 lakh properties in the country were ‘Waqf by user’. At this point, the Chief Justice intervened, “We are told Delhi High Court is built on Waqf land. We are not saying all waqf by user is wrong, but there is genuine concern,” he said. Mr Singhvi then said they are seeking a stay on some provisions and not the entire Act.
Appearing for the Centre, Solicitor General Tushar Mehta said the law was passed after detailed and elaborate debates in Parliament. He said a joint parliamentary committee (JPC) examined it and it was passed by both Houses again. He pointed out that the JPC had 38 sittings and examined 98.2 lakh memorandums before Parliament’s both houses passed it. CJI Khanna also said one high court could be asked to deal with the pleas.
The Chief Justice asked Mr Mehta to focus on the ‘Waqf by user’ provisions in the new law. “Are you saying that if a ‘Waqf by user’ was established by a (court) judgment or otherwise, today it stands void?” The Chief Justice mentioned that many mosques part of Waqf were built in the 13th, 14th and 15th centuries and it was impossible to present documents for them.
The bench then said that “there will be an issue” if the government is going to denotify ‘Waqf by user’. “The legislature cannot declare a court’s judgment would not be binding,” it said, adding that while there are instances of “misuse”, “there are genuine Waqf too”.
“How will you register such ‘Waqfs by user’ who have been there for long? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones too. I have gone through the Privy Council judgments. ‘Waqf by user’ is recognised. If you undo it, then it will be a problem,” the Chief Justice said.
“Waqf by user” refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn’t a formal, written declaration of waqf by the owner.
The court said, “Before the Britishers came, we did not have land registration law or Transfer of Property Act. Many of the masjids were constructed in the 14th, 15th, 17th centuries. Asking them to produce a registered sale deed is an impossibility. Like in the case of Jama Masjid which is waqf by user. If you had established waqf by user in the versions of Waqf Act prior to the 2025 Amendment Act, can it be made void now?”
The court then moved to the composition of the Central Waqf Council under the new law. The Chief Justice then asked a significant question. “Mr Mehta, are you saying you will allow Muslims to be part of Hindu endowment boards? Say it openly.”
During one exchange, Justice Khanna noted, “When a public trust is declared Waqf 100 or 200 years ago… suddenly you say it is being taken over by the Waqf Board.” Mr Mehta intervened and said it means if one has a Waqf, it can be made into a trust and there is an enabling provision for it. The Chief Justice then remarked: “You cannot rewrite the past!”
Another exchange occurred when the Chief Justice said, “So, as per the Act, eight members are Muslims. Two may not be Muslims. Then the rest are non-Muslims.” Solicitor General Mehta then remarked, “Then this bench also cannot hear the case.” CJI Khanna retorted: “What? When we sit over here, we lose our religion. For us, both sides are the same. How can you compare it with the judges? Why not have non-muslims also in the advisory board of Hindu endowments then? “Are you saying that, from now on, you will allow Muslims to be part of the Hindu endowment boards? Say it openly,” the bench said.
Mr Mehta said there was a large section of Muslims who did not want to be governed by Muslim Board. He further said the new Waqf Act was more inclusive, earlier it used to be only Shia and Sunni, now even sects of Muslim community would have representation in the council.
Several Muslim organisations and parties, including, All India Muslim Personal Law Board (AIMPLB), and the Jamiat Ulama-e-Hind, the Dravida Munnetra Kazhagam (DMK), and opposition MPs, including Congress’ Mohammad Jawed, Imran Pratapgarhi and AIMIM’ Asaduddin Owaisi have filed around 72 petitions challenging the validity of the Act. They claimed that the Act is discriminatory towards Muslim community and violating their fundamental rights.
The Waqf amendment bill was passed in the Rajya Sabha with 128 votes in favour and 95 opposing it, following a 13-hour debate going past midnight. It was cleared in the Lok Sabha in a 288-232 vote after a 12-hour debate earlier this month and was gazetted by the Centre after the President Droupadi Murmu gave her assent.
