Kapil Sibal argued the new Waqf law violates Article 26, which protects religious autonomy, questioning the requirement of five years of Islamic practice to donate and the government’s authority to verify fait
Published Apr 16, 2025 | 9:58 PM ⚊ Updated May 05, 2025 | 11:02 AM
Supreme Court (iStock)
Synopsis: In a key hearing, the Supreme Court questioned the constitutional validity of provisions in the new Waqf law, including district collectors certifying Waqf properties and non-Hindus managing Hindu religious bodies. Over 90 petitioners, including MPs from Congress, SP, TMC, AIMIM, DMK, actor Vijay’s TVK, and various Islamic organisations, have challenged the law’s provisions in court.
In a significant hearing, the Supreme Court of India raised questions regarding the constitutional validity of certain provisions in the new Waqf Amendment Act 2025.
Specifically, the court questioned the justification of granting district collectors the authority to certify Waqf properties and whether members of other religions can be allowed in administrative bodies managing Hindu religious properties.
The petitions challenging the new Waqf law were filed by over 90 parties, including Members of Parliament from Congress, Samajwadi Party, Trinamool Congress, AIMIM, from Tamil Nadu, DMK, actor Vijay’s TVK party, several Islamic organisations, and individuals.
All petitions were grouped and heard together on 15 April by a bench headed by Chief Justice Sanjiv Khanna.
Chief Justice Khanna stated that initially, the bench will focus on two aspects: whether the cases should be transferred to respective High Courts or be heard by the Supreme Court itself, and what specific issues the apex court should deliberate upon.
Senior advocate Kapil Sibal, appearing for the petitioners, argued that Article 26 of the Constitution allows religious communities to form institutions and manage their own properties, and that the new law infringes on this right.
He pointed out that the law requires an individual to have followed Islam continuously for five years in order to donate property to the Waqf, and questioned the government’s authority to seek proof of one’s religious adherence.
Sibal also contended that inheritance in Islam is after death, and they are intervening before that. When he mentioned that even historical mosques could be affected by the new law, the bench responded that ancient mosques and those protected by the Archaeological Survey of India would not be impacted.
Another major concern raised was the vesting of authority in district collectors to determine whether a property is Waqf.
Sibal argued that since collectors are government appointees, this is akin to a judge deciding a case in which he has personal interest. He further criticised the provision allowing non-Muslims in Waqf Boards and Commissions, calling it unconstitutional.
On the mandatory requirement of property documents under the new law, Sibal argued that it is impractical, especially for properties that were Waqf over 300 years ago.
Representing DMK, senior advocate Wilson demanded the immediate removal of the clause that mandates a person must be a prove that he practicing islam for five consecutive years to donate property as Waqf.
Solicitor General Tushar Mehta, appearing for the Central Government, defended the law, stating that it was passed unanimously in both Houses of Parliament after thorough debates and nationwide consultations.
However, the bench interrupted, asking whether non-Muslims can be found on the boards of Hindu temples like Tirupati and whether the inclusion of non-Muslims in Waqf Boards is justifiable. They questioned how a government-appointed district collector could impartially decide Waqf property disputes.
When the government counsel did not provide examples of non-Hindus in Hindu temple boards, the bench pressed further, noting that if non-Muslims can be part of Waqf advisory boards, then non-Hindus could similarly be included in boards managing Hindu religious properties.
The bench also questioned terms used in the law such as “disputed property” and whether such classification can be made even before judicial scrutiny. The judges pointed out that many mosques from the 13th to 15th centuries predate colonial property laws and asked how such properties would now be certified.
When the Solicitor General stated that if the court believes such provisions suggest a bias, then it would be inappropriate for the court to hear the matter, the bench strongly objected. The judges clarified that they remain neutral and above religious affiliations and emphasised that if non-Muslims can advise on Waqf matters, non-Hindus should also be allowed in Hindu temple boards.
The Supreme Court issued a notice to the central government to respond to the petitions and hinted at possibly staying certain provisions of the law—such as allowing non-Muslims in Waqf Boards and bringing already judicially recognised Waqf properties under the new law. The Centre, however, opposed the idea of an interim stay.
The Chief Justice also expressed concern over violent incidents reported in some parts of the country in reaction to the new law.
(Edited by Ananya Rao)
