The Supreme Court’s Day 1 hearing on the Waqf (Amendment) Act, 2025 witnessed sharp criticism of a controversial clause, as the CJI proposed interim relief measures pending final adjudication.
NEW DELHI: In a landmark moment, the constitutional validity of the Waqf (Amendment) Act, 2025 came under judicial scrutiny as the Supreme Court began hearing a batch of nearly 100 petitions challenging the controversial legislation. The hearing commenced amidst growing national debate, following the Bill’s passage by Parliament on April 4, 2025, after marathon sessions—12 hours in the Lok Sabha and 14 hours in the Rajya Sabha.
Originally introduced as the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2024, the legislation promises an overhaul of the Waqf Act, 1995. The government claims it will enhance transparency, streamline governance, and modernize the management of waqf properties.
However, critics argue that it significantly expands the Centre’s control over religious endowments, highlighting the autonomy of State Waqf Boards and imposing potentially discriminatory provisions—such as the requirement for individuals to prove they have been practising Muslims for five years before making a waqf declaration.
On Day 1 of the hearing, Chief Justice of India Sanjiv Khanna expressed concern over these provisions and proposed a three-point interim framework to balance interests until the matter is fully adjudicated.
KEY CHANGES BROUGHT BY THE WAQF AMENDMENT BILL, 2025
Initially introduced in Parliament in August 2024, the Waqf (Amendment) Bill, 2025, underwent detailed scrutiny by a Joint Parliamentary Committee (JPC) headed by BJP MP Jagdambika Pal. The committee tabled its report on February 13, 2025, and the Bill subsequently received the Union Cabinet’s nod within a week.
However, the process was not without controversy. Opposition members of the JPC protested the exclusion of their proposed amendments and alleged that their dissenting opinions were expunged from the final report without their consent—raising concerns over transparency and procedural fairness.
The amended Bill repeals the 2024 draft version and seeks to introduce extensive changes to the Waqf Act, 1995, the legislation that regulates the administration and protection of waqf properties in India. The overarching goal, as stated by the government, is to strengthen governance, enhance efficiency, and ensure proper dispute resolution concerning waqf assets. Key provisions of the new Bill are outlined below.
Preservation of the “Waqf by User” Doctrine
One of the most debated provisions concerned the “waqf by user” principle—a customary Islamic legal concept recognising properties as waqf based on their uninterrupted communal religious or charitable use, even in the absence of formal documentation. Historically, many mosques, dargahs, graveyards, and shrines came into existence through oral declarations and continued community use over generations.
While the original version of the Bill sought to do away with this doctrine altogether, the JPC flagged that such a move would destabilise the legal status of hundreds of historically managed waqf sites. Responding to these concerns, the revised Bill allows waqf by user to be retained for properties already registered before the enactment of the new law—unless they are under dispute or have been identified as government-owned land. However, going forward, new waqf claims must be supported by formal documentation.
Controversial Clause on Religious Affiliation of Donors
A contentious clause in the Bill stipulates that a person must demonstrate adherence to Islam for at least five years to legally constitute a waqf. Critics argue
“this condition is discriminatory, particularly toward recent converts who may genuinely wish to endow property for religious or charitable purposes. It has been denounced as an arbitrary restriction on religious expression and philanthropic activity“
Inclusion of Non-Muslims in Waqf Institutions
The revised Bill retains the provision that allows non-Muslims to serve in key waqf institutions, including Waqf Tribunals. This measure has attracted criticism from some quarters of the Muslim community who argue it infringes upon their constitutional right under Article 26 to manage religious affairs autonomously.
To address concerns over impartiality and expertise, the Bill restructures the composition of Waqf Tribunals. Each tribunal will now consist of:
- A District Judge,
- A Joint Secretary-level officer from the State government, and
- An expert in Muslim law and jurisprudence.
Tribunals already in existence at the time of enactment will continue until the expiry of their current members’ terms. The government maintains that these appointments are intended to promote accountability and efficiency rather than dilute community representation.
Stricter Oversight of Waqf Property Surveys
Previously, district collectors or equivalent officials were empowered to conduct surveys of waqf properties. The revised Bill now mandates that surveys, particularly in cases involving land disputes with the government, must be carried out by senior officers above the rank of district collectors. This change is intended to bolster objectivity and administrative rigour in assessing contested properties.
Digitisation and Centralised Registration
In pursuit of better record-keeping and transparency, the Bill introduces a centralised digital portal for registering all waqf properties. Within six months of the law’s commencement, all existing properties must be uploaded to this portal by the respective Waqf Boards.
To accommodate administrative difficulties, the revised Bill empowers waqf tribunals to extend this deadline. A muttawali (custodian) can apply for an extension by showing sufficient cause for the delay, and the tribunal may grant additional time as deemed appropriate.
Application of the Limitation Act, 1963
One of the most significant reforms is the repeal of Section 107 of the 1995 Act, which had previously excluded waqf properties from the ambit of the Limitation Act, 1963. That exclusion allowed Waqf Boards to reclaim encroached properties irrespective of how long they had been occupied.
With the repeal, waqf institutions will now be subject to the standard limitation periods—most notably, the 12-year bar on recovering possession. Opposition figures like AIMIM leader Asaduddin Owaisi argue that
“this will legitimise unlawful occupations through adverse possession, undermining the community’s efforts to reclaim historical properties”
Judicial Review and Appeals
The revised Bill allows for judicial oversight by permitting appeals to the High Court within 90 days of a tribunal’s decision. This addresses previous criticisms
“that waqf tribunals were vested with unchecked powers, and enhances avenues for redressal”
However, the Bill also tightens procedural compliance. Courts are barred from entertaining suits concerning waqf property rights unless the property has been registered within six months of the law taking effect. An exception is allowed only where the court is satisfied that there was a valid reason for the delay.
CJI Adjurns Without Passing Any Interim Order
Supreme Court expressed grave concerns over provisions of Waqf (Amendment) Act, 2025; adjourns without passing interim order.
On April 16, 2025, the Supreme Court raised significant concerns over key provisions of the Waqf (Amendment) Act, 2025, particularly the derecognition of the long-established category of waqf-by-user properties. Chief Justice of India Sanjiv Khanna, presiding over a three-judge bench hearing nearly 100 petitions challenging the amended law, warned that the de-notification of such properties could result in a “huge problem.”
The controversial 2025 amendment allows the government to determine whether a property is waqf or government-owned and permits the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards. These provisions have sparked widespread protests and communal unrest, especially in West Bengal, which the CJI described as
“very disturbing.”
During a two-hour hearing in a packed courtroom, CJI Khanna proposed a tentative three-point interim order aimed at maintaining a balance of interests. However, no interim relief was granted, as the government requested additional time to respond. The matter was adjourned to April 17 at 2 p.m.
Proposed Interim Directions by the CJI
- Preservation of Declared Waqf Properties:
The Chief Justice suggested that
“properties already recognized as waqf by courts—including waqf-by-user (i.e., those used as waqf properties over time without formal documentation or registration) or those declared waqf by other means—should not be de-notified for the time being”
2. Status Quo on Property Use:
He recommended that
“while a designated government official may continue to examine the status of disputed properties, the controversial provision that freezes the use of such properties during this review could be temporarily stayed“
3. Conditional Inclusion of Non-Muslims in Waqf Bodies:
The court was open to
“allowing non-Muslims to serve as ex-officio members of the Waqf Council and Boards, provided the majority of members remained Muslims“
“Asking for Sale Deeds of 14th Century Mosques Is Illogical”: CJI
Highlighting the historical and practical challenges of implementing the new law, Chief Justice Khanna questioned the logic of requiring formal documentation for waqf-by-user properties.
“Before the British, there was no land registration law or Transfer of Property Act. Many mosques were built in the 14th, 15th, and 17th centuries. Expecting registered sale deeds for these is simply impossible,”
he said, citing Jama Masjid as an example.
Senior advocate Kapil Sibal, representing the petitioners, challenged the state’s authority to reject waqf-by-user claims.
“How can the state say I cannot claim waqf-by-user? These waqfs are centuries old. Where will you find records?”
he asked.
Senior advocate A.M. Singhvi added that
“out of approximately eight lakh waqf properties in India, nearly four lakh fall under the waqf-by-user category”
“Prove You Are a Good Muslim?” Petitioners Slam New Clause
The petitioners also attacked a new clause that mandates an individual to prove they have been a practising Muslim for at least five years before creating a waqf. This, they argued, violates Article 26 of the Constitution, which guarantees the right to manage religious and charitable institutions.
“Effectively, I now have to prove to the state that I’m a good Muslim,” Sibal remarked.
In defense, Solicitor General Tushar Mehta argued that
“if someone wanted to perform charitable acts, they were free to do so outside the waqf framework”
Senior advocate Rajeev Dhavan countered, asserting that waqf and charity are essential practices in Islam.
“This Act results in a transfer of religious control from the community to the state,” he said.
Can Non-Muslims Administer Waqf?
The Bench also deliberated on the provision that opens the door for non-Muslims to be part of waqf administrative bodies. Justice K.V. Viswanathan questioned
“whether such an arrangement would be acceptable in the context of Hindu religious endowments, which are typically managed by Hindus”
“Are you saying Muslims can now be part of Hindu endowment boards too?” the CJI asked pointedly.
Solicitor General Mehta maintained that
“only two of the 22 members of the Central Waqf Council would be non-Muslims and that this had already been clarified before the Joint Parliamentary Committee“
He also argued that
“it was incorrect to suggest that only Muslims could determine waqf status”
“If that were the case, even the judges on this Bench would not be competent to hear this matter,” he added.
To this, CJI Khanna replied firmly:
“This is adjudication. When we sit here, we lose our religion.”
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Concerns Over Government’s Role
One particularly contentious provision allows a Collector or designated officer to decide whether a property is waqf, during which time its treatment as such is suspended. The CJI questioned the financial implications of this.
“What happens to the rents collected from such properties in the meantime? Where will they go?” he asked.
Mr. Mehta clarified that the identity of the property as waqf may be temporarily withheld, but its actual use would not be halted.
Kapil Sibal responded sharply, arguing that allowing a government officer to determine waqf status makes them
“a judge in their own cause.”
He warned of the inherent bias such an arrangement could create.
As the case resumes on April 17, the constitutional validity and broader implications of the Waqf (Amendment) Act, 2025, remain under intense judicial scrutiny, with the potential to reshape the governance of religious endowments in India.
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