Supreme Court reserves interim orders on petitions challenging Waqf (Amendment) Act
After hearing marathon arguments for three days, the Supreme Court on Thursday reserved its interim orders on petitions challenging the validity of the Waqf (Amendment) Act, 2025, which has done away with the concept of ‘waqf by user’.
‘Waqf by user’ was a practice where a property was recognised as a Muslim endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there wasn't a formal, written declaration of waqf by the owner.
A Bench of CJI BR Gavai and Justice AG Masih reiterated that there’s a presumption of constitutionality in favour of a law passed by Parliament. "I have already said that there is a presumption of constitutionality," the CJI said.
"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…we don't need to say more,” the Bench had said on May 20.
The Bench reserved its interim orders after hearing senior counsel Kapil Sibal, AM Singhvi, Rajeev Dhavan and Huzefa Ahmadi for the petitioners, and Solicitor General Tushar Mehta for the Centre. Senior advocates Rakesh Dwivedi and Ranjit Kumar – who represented governments of Rajasthan and Haryana, respectively, supported the Centre.
The CJI pointed out that the requirement of registration of Waqfs has been there under the previous laws of 1923 and 1954.
The top court had on April 17 deferred passing any interim orders in the matter after the Centre undertook not to make any appointments to waqf councils and waqf boards or de-notify existing waqf properties -- including ‘waqf by user’ or ‘waqf by deed’ properties already declared by notification or gazetted.
The Bench has identified three key issues -- Waqf by user, nomination of non-Muslims to the Waqf Council and state Waqf Boards, and identification of government land as Waqf property – for consideration at this stage for passing interim orders.
On behalf of the petitioners, Sibal has contended that an irreparable injury will be caused if the provisions were activated.
Alleging that the amendment was a "complete departure from historical legal and constitutional principles" and a means to "capture waqf through a non-judicial process", he said, "This is a case about the systematic capture of waqf properties. The government cannot dictate what issues can be raised..."
Contending that waqf isn’t an essential part of Islam and waqf boards discharge secular functions, the Centre has defended the inclusion of non-Muslims in waqf boards, saying the amended law dealt with secular aspects of waqf.
"Waqf is an Islamic concept. But it is not an essential part of Islam. Waqf is nothing but just charity in Islam…Charity is recognised in every religion. It is part of Christianity also, but the Supreme Court says it’s not an essential part. Hindus have a system of daan, Sikhs also have (charity). But it’s not an essential part of any religion,” Mehta had said on Wednesday.
On Thursday, Mehta defended a provision which says only a person, who has been practising Islam for the last five years, can create waqf by saying the condition was necessary to prevent fraudulent waqfs and not to deny genuine religious expression. “If a Hindu wants to create a charitable institution, there are existing legal routes. Why use waqf?...Charity can be done by non-Muslims by creating trusts...” he said.
The Solicitor General justified the tribal land exclusion clause under the amended waqf law, saying Scheduled Tribes in scheduled areas were a constitutionally protected class, and the amendment respected that status.
Under the amended waqf law notified on April 8, only self-owned resources can be declared as Waqf after ensuring the inheritance rights of women and children and the DC will determine that the land being donated by a Muslim is actually in his ownership. It also empowers state governments to nominate members, including representatives from backward classes and both Shia and Sunni communities, to Waqf boards.
However, alleging that “this bill is a dangerous conspiracy to strip Muslims of their religious freedom,” Jamiat urged the top court to prevent the law from coming into effect. It’s a “direct attack on the country’s Constitution, which not only provides equal rights to its citizens but also grants them complete religious freedom”, the petitioners contended.
