Today, On 16th April, During the Waqf Amendment Act hearing, Solicitor General Tushar Mehta’s remark” Then this bench also cannot hear the case” created a sharp response from the Supreme Court, which questioned the inclusion of non-Muslims in Waqf bodies and pressed the Centre for clarity.
New Delhi: Today, during the ongoing hearings on the constitutional validity of the Waqf (Amendment) Act, 2025, the Supreme Court asked pointed questions to the Centre, challenging the inclusion of non-Muslims in the Waqf Boards and Councils.
The matter heard by a Constitution Bench led by Chief Justice of India Sanjiv Khanna, along with Justices PV Sanjay Kumar and KV Viswanathan.
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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.”
One of the most notable moments of the day came when the Bench questioned the Union Government over the inclusion of non-Muslims in the Central Waqf Council.
Solicitor General Tushar Mehta, representing the Centre, found himself on the defensive as the judges pressed for clarity.
CJI Khanna asked,
“Mr. Mehta, are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards? Say it openly.”
SG Mehta attempted to downplay the concerns and assured the Court,
“I can put it on affidavit that no more than two members would be non-Muslims.”
However, the Court wasn’t convinced. Referring to the current composition, it remarked,
“So as per the Act, 8 members are Muslims. Two judges may not be Muslims! Then the rest are non-Muslims.”
In response, SG Mehta replied,
“Then this bench also cannot hear the case.”
The remark created immediate rebuttal from the judges.
CJI Khanna countered strongly,
“What! When we sit over here, we lose our religion. For us, both sides are the same. How can you compare it with the judges? Why not have non-Muslims also in the advisory board of Hindu endowments then?”
Justice Kumar also added,
“Is Tirupati board governed by non-Hindus? Give us examples.”
The Court reiterated its concern, asking if the government was prepared to make an official statement that only two, apart from ex officio members, would be non-Muslims.
SG Mehta responded that he would submit it on affidavit.
Senior Advocate Kapil Sibal, arguing for the petitioners, challenged multiple provisions of the Waqf Amendment Act. He argued that the Act directly interferes with the community’s right to manage its religious affairs as protected under Article 26 of the Constitution.
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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.