The Supreme Court made an oral observation that it will look into staying certain aspects of the recently amended Waqf Acts, as it found the expunction of Waqf by User, the power given to the District Collector to change the Waqf status of a land, and the inclusion of non-Muslims in the Waqf Board to be contentious and likely to have significant consequences, thus raising fundamental constitutional and practical questions regarding the Waqf (Amendment) Act, 2025.
As the bench comprising Chief Justice of India Sanjiv Khanna, along with Justices Sanjay Kumar and K.V. Viswanathan, is set to continue hearing a batch of petitions against the contentious amendments to the Waqf Act today before pronouncing an interim order—possibly staying the implementation of certain aspects of the Act—the court raised serious concerns, questioning how Muslims could be included in boards meant for Hindu endowments.
The Court's attention centred around a batch of petitions challenging the constitutional validity of the amended Act, which alters key aspects of the Waqf management structure and introduces provisions that petitioners claim infringe on the fundamental rights guaranteed under Article 26 of the Constitution. Among the contested changes are the deletion of waqf-by-user as a recognised category, the inclusion of non-Muslim members in Waqf boards, and new limitations regarding the creation and maintenance of Waqf properties.
The bench reserved specific criticism for the amendment’s provision that allows non-Muslims to be nominated to Waqf Boards and the Central Waqf Council, barring only ex-officio positions. The petitioners contended that this encroaches upon the right of the Muslim community to manage its religious affairs without external interference.
The Court responded by questioning the rationale for such inclusion and, in a pointed courtroom exchange, drew comparisons to whether Muslims could similarly serve on boards governing Hindu religious endowments. The implication was clear: if religious representation is maintained strictly in other contexts, why should Waqf institutions be any different?
Chief Justice Khanna underscored the principle that judicial impartiality requires judges to rise above religious identity when adjudicating disputes. However, he expressed concern over the legislative intrusion into religious administration, suggesting that legislative parity must be upheld across communities if amendments are to stand the test of constitutional scrutiny.
The Court appeared inclined to issue an interim order restraining the implementation of certain provisions until the final verdict is delivered. Among the directions proposed was a bar on de-notifying waqf properties that had already been recognised by courts, whether by deed or by long-standing religious usage. This relief was seen as necessary to prevent irreparable damage while the legal challenge to the Act is heard in full.
Another provision stayed by the Court pertains to the Collector’s power to halt the treatment of a property as waqf pending an inquiry into whether the land belongs to the Government. The Court stated that such provisions must not be enforced for now, as they risk overriding established court declarations and disrupting the continuity of waqf administration.
Senior advocates Kapil Sibal, Rajeev Dhavan, and AM Singhvi, appearing for the petitioners, argued that several provisions in the amended Act violate religious freedom and the autonomy of the Muslim community. Sibal highlighted that the requirement for an individual to prove adherence to Islam for five years before creating a waqf amounts to the State evaluating religious identity, which he argued was constitutionally impermissible. He further objected to the removal of waqf-by-user, a centuries-old practice by which properties used continuously for religious purposes are treated as waqf even in the absence of formal documentation.
The deletion of this category, the petitioners contended, would render almost half of existing waqf properties — approximately four lakh of the eight lakh listed — legally invalid. Singhvi called this legislative change dangerous, arguing that without first revisiting the judicial precedents that validated waqf-by-user, Parliament had acted arbitrarily.
The Court acknowledged the seriousness of this claim, referring to landmark sites such as Jama Masjid in Delhi and other historic mosques that might be adversely affected by such deletion. The Chief Justice questioned the practicality of asking religious institutions to produce documents for endowments created centuries ago, suggesting that the legislative assumption underlying the amendment ignored the historical realities of Islamic charitable traditions in India.
Other issues raised included the application of the Limitation Act to waqf disputes. The petitioners warned that such provisions could legitimise encroachment by adverse possession, which would further harm waqf properties already vulnerable to illegal occupation.
Another concern was the invalidation of waqf creation over properties protected under the Ancient Monuments and Archaeological Sites and Remains Act (ASAMR Act). The Court observed that such a clause would not apply retroactively to waqf declarations made before a monument was officially protected. Therefore, most longstanding waqf institutions located in or near ancient monuments may not be impacted. However, the petitioners insisted that this clause still presented potential for misuse and uncertainty.
Also contested was the prohibition on creating waqf over lands belonging to Scheduled Tribes. Sibal submitted that while laws exist to prevent the alienation of tribal land, they do not restrict transfers between tribal persons themselves. He argued that the blanket prohibition under the new law lacked nuance and overstepped existing legal safeguards.
As the bench considered issuing an interim order, the Solicitor General and other counsel for the respondents urged the Court to defer its pronouncement until they had an opportunity to respond. Accepting the request, the Court scheduled further hearings for Thursday at 2 PM.
In its proposed interim order, the Supreme Court made clear its intention to protect the status quo with respect to waqf properties already recognised through judicial or long-standing religious usage. It also indicated that the composition of Waqf boards and councils must conform to constitutional expectations of religious autonomy, stating that only ex-officio members could be non-Muslims, while all other members must belong to the Islamic faith.
Further, the Court proposed the transfer of all pending challenges to the Waqf Act 1995 and its amendments from various High Courts to the Supreme Court, so that they could be adjudicated together for consistency and coherence.