The Supreme Court of India on April 16 began hearing a series of petitions questioning the constitutional validity of the Waqf (Amendment) Act, 2025. The matter was taken up by a three-judge bench comprising Chief Justice of India Sanjiv Khanna, Justice Sanjay Kumar, and Justice KV Viswanathan.
The first day of hearings featured intense arguments, particularly between Solicitor General Tushar Mehta and senior advocates Kapil Sibal, Abhishek Manu Singhvi, Rajeev Dhawan, and CU Singh, who appeared on behalf of the petitioners.
The bench is scheduled to resume proceedings on April 17 at 2 PM.
Key Issues Raised
During the hearing, the court flagged three major concerns:
Validity of Waqf by User Properties: Properties previously declared as waqf through court decrees may now be rendered void under the new amendments.
Waqf Council Composition: The inclusion of non-Muslims as majority members in the Central Waqf Council was questioned.
Disputed Waqf Properties: The court raised concerns over ongoing inquiries by district collectors into disputed waqf properties, and the legal implications of declaring such properties as non-waqf.
Concern Over Violence In West Bengal
At the conclusion of the hearing, CJI Khanna expressed deep concern over reports of violence in West Bengal related to the amendments.
“One thing is very disturbing—the violence that is taking place. If the matter is pending here, it should not happen,” the Chief Justice remarked.
Proposed Court Direction On Waqf Property
The court suggested that properties already declared as waqf—including those categorized under waqf by user—should not be de-notified while the constitutional challenge is pending. However, the Centre opposed this move and requested a full hearing before any such directive is passed.
In a pointed query, the bench asked the Centre whether Muslims would be allowed membership in Hindu religious trusts—highlighting concerns over religious parity in the governance of religious endowments.
The bench also stated that:
“All members of the Waqf Boards and the Central Waqf Council must be Muslims, except ex-officio members.”
Supreme Court Bench On Inclusion Of Non-Muslims In Waqf Council
The bench comprising Chief Justice of India (CJI) Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan was questioning the provisions of the Waqf (Amendment) Act, 2025 that allow for the nomination of non-Muslim members to the Central Waqf Council and state waqf boards.
"Are you suggesting that minorities, including Muslims, should also be included in boards managing Hindu religious institutions? Please state that openly," the CJI said.
Representing the Centre in the matter, Solicitor General Tushar Mehta defended the provisions, emphasising that the inclusion of non-Muslim members is limited and does not affect the predominantly Muslim composition of these bodies.
The law officer also said objections to non-Muslim participation could logically extend to judicial impartiality and by that logic, the bench itself would be disqualified from hearing the matter.
If the objection to the presence of non-Muslims in the statutory boards is accepted, then the present bench would also not be able to hear the matter, Mehta said, adding, "Then your Lordships cannot hear this matter if we go by that logic."
The CJI shot back, saying "No, sorry Mr Mehta, we are not talking just about adjudication. When we sit here, we lose our religion. We are absolutely secular. For us, one side or the other is the same."
Supreme Court Asks Solicitor On Waqf By User
The apex court questioned Mehta on how "waqf by user" could be disallowed as many would not have requisite documents to get such waqfs registered.
"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 amended provision states, "Provided that the existing waqf by user properties registered on or before the commencement of the Waqf (Amendment) Act, 2025 as waqf by user will remain as waqf properties except that the property, wholly or in part, is in dispute or is a government property".
The bench during the hearing asked, "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." Mehta submitted there was a large section of Muslims who 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." When a public trust was declared to be a waqf 100 or 200 years ago, it couldn't suddenly be taken over by the waqf board and declared otherwise, it added.
"You cannot rewrite the past," the bench said.
