Muslims display a placard as they stage a protest against the Waqf Amendment Bill.
Credit: PTI Photo
New Delhi: The Supreme Court on Wednesday proposed to hold the properties declared by courts as waqfs not to be de-notified whether they are by waqf-by-user or waqf by deed, as it took up a batch of a matter challenging the validity of the Waqf (Amendment) Act, 2025.
A bench of Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and K V Vishwanathan also indicated to pass the order that the proviso of the Amendment Act, as per which a waqf property will not be treated as a waqf while the Collector is conducting inquiry whether the property is a government land, will not be given effect to.
The court also felt that all members of the Waqf Boards and Central Waqf Council must be Muslims, except the ex-officio members.
Taking up challenge to validity of the Amendment Act, the bench indicated to pass the tentative interim order as it decided to consider the matter on Thursday as well, on a request made by Solicitor General Tushar Mehta on behalf of the central government.
After the two-hour long hearing, the bench also proposed to seek a response from the Union government on over 100 petitions challenging validity of the law but declined to consider any stay on the operation of the law as of now. Instead, the court proposed to pass interim order to balance the equity.
AIMIM leader Asaduddin Owaisi, All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), Congress MPs Imran Pratapgarhi and Mohammad Jawed have filed pleas challenging the validity of the Act.
The court repeatedly quizzed Mehta over inclusion of non-Muslims to the board to manage the waqf properties.
Mehta said if the objection to the presence of non-Muslims in the statutory board was accepted, then the present bench also would not be able to hear the matter.
To this, bench said, "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 bench also asked Mehta, appearing for the Centre, how "waqf by user" can be disallowed, as many will not have the 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.
"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," the bench said.
Mehta submitted that 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." The apex court said that 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.
"You cannot rewrite the past," the bench said.
Mehta submitted that a joint parliamentary committee had 38 sittings and examined 98.2 lakh memorandums before Parliament's both houses passed it.
The bench also said, "There are two aspects we want to ask both sides to address. Firstly, whether we should entertain or relegate it to the high court? Secondly, point out in brief what you are really urging and wanting to argue?" We are not saying there is any bar on SC in hearing, deciding pleas against the law."
Senior advocate Kapil Sibal, appearing for the petitioners' side, asked how the government could say only those who have practised Islam for the last 5 years can create a waqf.
Sibal questioned, "How can the state decide whether and how I am a Muslim or not and hence, eligible to create Waqf?" He claimed what is sought to be done is to intervene in an essential and integral part of a faith.
The bench said Article 26 will not bar the enactment of law in this case. "Article 26 is universal and it is secular in the fashion that it applies to all," the bench said.
Sibal argued that while now there are Waqf Council and boards, earlier, only Muslims used to be part of such boards. "Now even Hindus can be a part...this is a direct usurpation of fundamental rights by parliamentary enactment," he said.
The bench said the wordings of Article 26 "regarding administering etc., cannot be confused with essential religious practices".
The bench said, "We are told Delhi High Court is made on Waqf land and Oberoi hotel is also made on waqf land." The court clarified that it is not saying all 'waqf by user' is wrong, but there is genuine concern. The bench said all ancient monuments, including the Jama Masjid in Delhi, will remain protected.
Singhvi, appearing for one of the petitioners, citing a paragraph in the Ayodhya judgment, said 'waqf by user' is a very old concept.
Mehta, representing the Centre, said the court was dealing with a legislation and there was a constitution of a Joint Parliamentary Committee and the law was passed by both the Houses of Parliament.
"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," the bench asked Mehta.
"De-notifying waqf by user properties will cause an issue," the bench said. "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 said.
The bench said ex-officio members can be appointed regardless of faith, but others have to be Muslims.
The Centre recently notified the Waqf (Amendment) Act, 2025, which got the assent of President Droupadi Murmu on April 5 after its passage in the Parliament following heated debates in both houses.