The court made it clear that it may soon pass an order preventing the de-notification of properties that have already been declared as waqf by the courts—whether such waqf is through usage (“waqf by user”) or through a written declaration (“waqf by deed”).
New Delhi: On Wednesday, the Supreme Court of India took up a series of petitions challenging the constitutional validity of the newly passed Waqf (Amendment) Act, 2025.
The court made it clear that it may soon pass an order preventing the de-notification of properties that have already been declared as waqf by the courts—whether such waqf is through usage (“waqf by user”) or through a written declaration (“waqf by deed”).
A special bench led by Chief Justice Sanjiv Khanna and comprising Justices Sanjay Kumar and K.V. Vishwanathan heard the matter.
The court also signalled that it may put a hold on one controversial proviso in the Amendment Act, which states that a property will not be treated as waqf while the Collector is conducting an inquiry into whether it is government land.
Several public figures and organisations have filed petitions questioning the legality of the Amendment Act. The petitioners include AIMIM leader Asaduddin Owaisi, the All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, DMK, and Congress MPs Imran Pratapgarhi and Mohammad Jawed.
The Court outlined three key directions it is considering:
- Properties already declared as Waqf by a court will not be de-notified or treated as non-Waqf, regardless of whether they are Waqf by user or not.
- District Collectors may proceed with ongoing actions under the new law, but the specific contested provision will not be implemented for now.
- Regarding appointments to the Waqf Board and Council, the Court said ex-officio members may be appointed, but the rest must be Muslims.
Solicitor General Tushar Mehta’s Arguments
The court repeatedly questioned Solicitor General Tushar Mehta, who appeared on behalf of the Union government, about the inclusion of non-Muslims in statutory waqf boards.
When Mehta argued that objecting to non-Muslim members would also imply that the current bench (which may include non-Muslim judges) cannot hear the case, the bench responded firmly:
“When we sit over here, we lose our religion, we are absolutely secular. For us, one side or the other side is the same. But then, when we are dealing with a Council looking after the religious affairs, issues may arise.”
The court also observed:
“All members of the Waqf Boards and Central Waqf Council must be Muslims, except the ex-officio members.”
The Solicitor General sought time until Thursday to continue arguments.
The bench hinted at issuing a tentative interim order and also stated that it would ask the Centre to respond to over 100 petitions but will not stay the law for now. Instead, it wants to issue an interim order to balance equities.
The bench expressed concern about the provision that does not allow waqf by user to be recognised unless supporting documents are available.
It said:
“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 out the basis.”
When Mehta claimed that many Muslims do not wish to be governed by the Waqf Act, the bench asked:
“Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards. Say it openly.”
The court further stated:
“You cannot rewrite the past.”
Senior Advocate Kapil Sibal Arguments:
Senior Advocate Kapil Sibal, representing the petitioners, argued against the idea that only Muslims who have practised the religion for the past 5 years can create a waqf. He asked:
“How can the state decide whether and how I am a Muslim or not and hence, eligible to create Waqf?”
He claimed that the law intervenes in a core religious belief:
“What is sought to be done is to intervene in an essential and integral part of a faith.”
In response, the bench said:
“Article 26 is universal and it is secular in the fashion that it applies to all.”
Sibal then highlighted the fact that earlier only Muslims were part of waqf boards. Now, even non-Muslims can be included:
“Now even Hindus can be a part…this is a direct usurpation of fundamental rights by parliamentary enactment.”
The bench clarified:
“The wordings of Article 26 regarding administering etc., cannot be confused with essential religious practices.”
The court said:
“We are told Delhi High Court is made on Waqf land and Oberoi hotel is also made on waqf land.”
However, the bench reassured that it is not dismissing the concept of waqf by user altogether:
“It is not saying all ‘waqf by user’ is wrong, but there is genuine concern.”
“All ancient monuments, including the Jama Masjid in Delhi, will remain protected.”
Senior Advocate Abhishek Manu Singhvi, also appearing for a petitioner, referred to the Ayodhya judgment to stress that “waqf by user” is a long-accepted practice:
“Waqf by user is a very old concept.”
Mehta defended the legislative process, noting that a Joint Parliamentary Committee conducted 38 meetings and reviewed over 98.2 lakh memorandums before passing the bill in both houses of Parliament.
The bench asked the Centre:
“Let’s be clear when it comes to Hindu endowments, it’s generally Hindus… Is waqf by user declared void or non-existent? If waqf by user already established, will it be declared as void or continue to subsist?”
“De-notifying waqf by user properties will cause an issue,” the bench warned. “It will be very difficult to register (in case of waqf by user)…you have a point that waqf by user is being misused, but genuine waqf by users are (also) there. If you de-notify waqf by user properties, then there will be an issue.”
The court concluded that while ex-officio members of waqf boards can be from any religion, regular members must be Muslims.
The matter will continue tomorrow.
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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.
