Supreme Court Flags Concerns Over Waqf Amendment Act, No Interim Order Yet

Supreme Court Flags Concerns Over Waqf Amendment Act: The Supreme Court will continue on Thursday the hearing of one batch of petitions questioning the constitutional validity of the Waqf (Amendment) Act of 2025. The bench, comprising Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K.V. Viswanathan, was inclined to issue notice on the petitions on Wednesday and pass a short order. However, the Centre and certain states sought time to make their submissions, which they wanted to do prior to the passing of any interim direction. The Supreme Court has set 2 p.m. for hearing the matter on Thursday.

Among the concerns raised during the hearing were: the possibility of invalidating previously determined waqf by user properties; appointments to the Waqf Council with a majority of non-Muslims; and, the continued inquiry by the collector and declaration concerning disputed Waqf property not being treated as such.

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The constitutionality of the amendments to the Waqf Act has expressed concern after violence in West Bengal.

“One thing is very disturbing is the violence that is taking place. If the matter is pending here it should not happen,” the CJI said.

The Supreme Court was inclined to direct that properties declared to be Waqf, including "waqf by user," would not be de-notified, but the Centre opposed such a plan and insisted that it be heard before such an order is passed.

The top court had also put the question to the Centre: if Muslims would be admitted as members of Hindu religious trusts.

"The properties declared by courts as waqfs should not be de-notified as waqfs, whether they are by waqf-by-user or waqf by deed, while the court is hearing the challenge to the Waqf Amendment Act 2025," the bench said.

The top court went on, “All Members of the Waqf boards and central Waqf Council must be Muslims, except the ex-officio members.”

The bench considered the option of referring the case to one high court initially, but later listened for a long time to a battery of senior advocates, including Kapil Sibal, Abhishek Singhvi, Rajeev Dhavan and Solicitor General Tushar Mehta, representing the Centre.

The CJI further made an observation to the effect that ex officio members could be appointed without looking at their faith, but others must only be Muslims.

The court questioned Mehta on how "waqf by user" can be ruled out as many would not have requisite documents to get such waqfs registered.

What is "Waqf by user"?

As far as "waqf by user" is concerned, it means that a property is treated as a charitable or religious endowment (waqf) for the sake of a long and continuous time of being used for such purposes, even if there may not be a formal and proper way of declaring a waqf by the owner in writing.

"How will you register such Waqfs by user? 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 also. Waqf by user is recognised. If you undo it then it will be a problem. Legislature cannot declare a judgment, order or decree as void. You can only take the basis," the bench said.

However, Mehta argued that the large segment of Muslims did not want to be governed by the Waqf Act.

The bench then asked Mehta, "Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards? Say it openly."

It cannot be suddenly overtaken by the waqf board and declared otherwise when some waqf out of them was declared by a public trust 100 or 200 years prior" the apex court stated.

"You cannot rewrite the past," the bench said.

Mehta argued that the joint committee worked for 38 sittings and received over 98.2 lakh memorandums before being passed by both houses in Parliament.

The CJI at the start of the hearing said, "There are two aspects we want to ask both the sides to address. Firstly, whether we should entertain or relegate it to the high court? Secondly, point out in brief what you are really urging and wanting to argue? We are not saying there is any bar on SC in hearing, deciding pleas against the law."

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Sibal, appearing for the petitioners referred to Waqf Amendment Act, and stressed on the provision denying any person other than a Muslim from creating waqf.

"How can state decide whether, and how I am a Muslim or not and hence, eligible to create waqf?" Sibal asked.

He added, "How can government say only those who are practising Islam for last five years can create waqf?"

Abhishek Singhvi, senior advocate for some petitioners, argued that Waqf Act would have all India ramifications and pleas should not be referred to the high court.

Opposing the Waqf Act, Senior Advocate Huzefa Ahmadi said Waqf by user is an established practice of Islam that cannot be taken away.

Recently, the Center has issued the Waqf (Amendment) Act of 2025, which was signed by President Droupadi Murmu on April 5 after heated debates in both Houses and subsequently passed into law by Parliament.

The bill was passed in the Rajya Sabha with 128 members voting in favour and 95 opposing it. It was cleared by the Lok Sabha with 288 members supporting it and 232 against it.

These comprise all the 72 petitions, for example, that are filed by AIMIM leader Asaduddin Owaisi, the All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), and Congress MPs Imran Pratapgarhi and Mohammad Jawed, challenging the validity of this enactment.

On behalf of the Centre, a caveat was filed in the Supreme Court on April 8, asking for a hearing before any order was delivered regarding the matter.

A caveat is filed by a party to the high courts and apex court to ensure that no order passes without hearing of that party.

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