Today, On 16th April, Senior Advocate Kapil Sibal, arguing before the Supreme Court, strongly opposed the Waqf (Amendment) Act, 2025. He said allowing a state-appointed Collector to decide if a property is waqf makes the officer a “judge in his own cause”, which is unconstitutional.
New Delhi: Senior Advocate Kapil Sibal strongly criticised the Waqf (Amendment) Act, 2025, during a major hearing in the Supreme Court on Tuesday. He said the law directly affects Muslims’ right to manage their religious affairs, which is protected by Article 26 of the Indian Constitution.
The matter heard by a Constitution Bench led by Chief Justice of India Sanjiv Khanna, along with Justices PV Sanjay Kumar and KV Viswanathan.
Also Read: Uttarakhand Waqf Board Moves Supreme Court to Support Waqf (Amendment) Act, 2025
Although the Court did not issue temporary orders on Wednesday, it suggested that it might give instructions to protect key religious principles until the final decision is made.
The Bench noted,
“Our interim order will balance equities. We will say that whichever properties were declared by court to be waqf will not be de-notified or be treated as non-waqf, whether it is waqf by user or not. The Collector can continue with proceedings, but the provision will not be given effect to. Regarding the board and council, ex officio members can be appointed. But the other members have to be Muslims.”
Kapil Sibal, appearing for one of the petitioners, said,
“Let me broadly address what the challenge is about. Through a parliamentary legislation what is sought to be done is to intervene in an essential and integral part of a faith. I refer to Article 26 and many provisions of the Act violate Article 26.”
Appearing on behalf of the petitioners, Sibal stated that the amended law tramples upon Muslims’ fundamental right to manage religious affairs under Article 26 of the Indian Constitution.
He targeted key provisions of the law that require proof of five years of practicing Islam to create a waqf, appointment of non-Muslims to Waqf Boards, and the abolition of the waqf-by-user doctrine.
Quoting Section 3(r) of the amended Act, Sibal questioned how the State could decide whether a person is a Muslim or not,
“Waqf means the permanent dedication by any person showing or demonstrating that he is practicing Islam for last 5 years… How should the State decide whether and how I am a Muslim or not?”
He fiercely opposed the State’s intrusion into inheritance matters, saying,
“Who is the State to tell us how inheritance will be in my religion?”
While the Chief Justice noted that Parliament has legislated for Hindus as well, stating that “Article 26 is universal and secular in nature”,
Sibal responsed,
“Inheritance in Islam is after death, and they are intervening before that.”
Another point of contention was the requirement of a waqf deed for creating waqf, Sibal reminded,
“Waqf by user is abolished! This was recognised in the Ayodhya judgment,”
Justice KV Viswanathan tried to justify the clause,
“The section says to avoid bogus claims, there should be a waqf deed.”
To this, Sibal replied,
“Not that simple. Waqfs are created hundreds of years ago. They will ask for waqf deeds for 300-year-old properties. That is the problem.”
Sibal strongly opposed the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, claiming it violates the constitutional right of religious communities to manage their own institutions.
He argued,
“Only Muslims had been part of such boards. Now even Hindus can be a part. This is direct usurpation of fundamental rights by parliamentary enactment,”
When the Court noted that only 8 of 22 members in the Waqf Council are Muslims, Sibal replied:
“It says excluding ex officio members… 2 is the minimum. All of them have to be Muslim as per Article 26. Here, even one is too many.”
The amended law gives powers to the District Collector to determine whether a property is waqf or not. Sibal attacked this provision, stating:
“A collector is the officer designated to decide whether a property is waqf or not if there is dispute. This person is part of the government and thus a judge in his own cause. This is per se unconstitutional.”
He also noted that limitation clauses (time limits to file suits) in the new law are harmful,
“If suits are not filed within two years, many waqfs by user will be lost. This will legitimize encroachers.”
Also Read: LEGAL EXPLAINER| Waqf & The Waqf Amendment Bill 2024: Key Legal Changes & Impact
The Bench also addressed the contentious issue of “waqf by user.” The Court acknowledged the potential misuse but also emphasized the seriousness of de-notifying properties that were previously recognized by courts as waqf,
“Undoing ‘waqf by user’ will create problems; there has been some misuse of this.”
Initially, the bench considered referring the pleas to a single high court but later engaged in extensive discussions with a range of senior advocates, including Kapil Sibal, Abhishek Singhvi, Rajeev Dhavan, and Solicitor General Tushar Mehta, who represented the Centre.
The Supreme Court indicated that it intends to issue an interim order regarding the petitions challenging the Waqf Amendment Act 2025:
- The properties declared by courts as waqfs should not be de-notified as waqfs, whether they are waqf by user or waqf by deed, while the court is hearing the challenge to the Waqf Amendment Act 2025.
- The court further orders that the proviso of the Amendment Act, which states that a waqf property will not be considered a waqf while the Collector is investigating whether the property is government land, will not be enforced.
- The court also stipulates that all members of the Waqf Boards and Central Waqf Council must be Muslims, except for ex-officio members.
The case, which can affect religious rights and the separation between religion and government, will continue tomorrow. The Supreme Court has not given a final decision yet but has said it wants to protect the Constitution while keeping a fair balance between all sides.
Several individuals, political leaders, and organisations have moved the court to challenge the Waqf Amendment Act. Among the petitioners are AIMIM MP Asaduddin Owaisi, Congress MP Md Jawed, RJD MP Manoj Kumar Jha, TMC MP Mahua Moitra, and other prominent figures.
Various groups such as the All India Muslim Personal Law Board, Jamiat Ulema-i-Hind, and the Association for Protection of Civil Rights are also part of the challenge.
Political parties including the DMK, Indian Union Muslim League, YSR Congress Party, and the Communist Party of India have extended their support to the petitions.
Additionally, Delhi MLA Amanatullah Khan, SP MP Zia Ur Rehman, the Imam of Bengaluru’s Jama Masjid, and Tamil actor and TVK President Vijay have also approached the court.
On the other hand, the States of Rajasthan, Gujarat, Haryana, Maharashtra, Assam, Uttarakhand, and Chhattisgarh have filed applications to support the Waqf Amendment Act. The Central Government has submitted a caveat, requesting the court to hear its side before issuing any interim orders.
The Waqf Amendment Bill was passed after a 12-hour-long debate, securing 288 votes in favor and 232 against.
On August 8, 2024, two significant legislative proposals, namely the Waqf (Amendment) Bill, 2024, and the Mussalman Wakf (Repeal) Bill, 2024, were introduced in the Lok Sabha. These bills aim to enhance the efficiency of Waqf Board operations and ensure better management of Waqf properties across India.
President Droupadi Murmu granted her assent to the Waqf (Amendment) Bill, 2025, which was previously passed by Parliament amid intense debates in both Houses. Multiple petitions have already been filed in the apex court contesting the bill’s validity.
This amendment introduces significant reforms to the management and administration of waqf properties in India.
The Waqf Act, originally enacted in 1995, governs the administration of Muslim charitable endowments (Waqf properties) in India.
Solicitor General Tushar Mehta represented the Union of India.
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