The CJI said noted that courts will interfere only if a glaring case is made out. "There is a presumption of constitutionality for the statute and courts cannot interfere unless a glaring case is made out."
Published May 20, 2025 | 5:49 PM ⚊ Updated May 20, 2025 | 5:49 PM
The Supreme Court of India. (Creative Commons)
Synopsis: The Supreme Court is hearing over 90 petitions challenging the Waqf (Amendment) Act, 2025, with petitioners claiming it undermines Muslim rights and enables government control of waqf properties. Senior advocates Kapil Sibal and Abhishek Singhvi criticised provisions allowing non-Muslim appointments and alleged misleading data on waqf growth. The Court paused key provisions, stating it will intervene only if a clear violation is proven.
The Supreme Court on Tuesday, 20 May, while hearing a group of petitions challenging the constitutional validity of the recently passed Waqf (Amendment) Act, 2025, adjourned the hearing, and noted that the hearing will continue on Wednesday, 21 May.
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.
The act seeks to amend the law governing Waqf boards and has proposed far-reaching changes in the present Act, including ensuring the representation of Muslim women and non-Muslims in such bodies.
On 17 April, the Central government assured the Bench, then headed by then Chief Justice of India (CJI) Sanjiv Khanna, that it would temporarily refrain from implementing several key provisions of the Act. The Court took note of this assurance and chose not to issue a formal stay.
Following CJI Khanna’s retirement on 13 May, the case is being heard by a Bench comprising CJI BR Gavai and Justice AG Masih.
The hearing began with Solicitor General Tushar Mehta noting that the court had previously earmarked three issues. Stating that he had filed responses to those issues, he urged the apex court to limit it to them, despite other petitioners written submissions extend to several other issues.
Senior Advocate Kapil Sibal responded, “The then CJI (Sanjiv Khanna) said, we will hear the case and see what interim relief has to be granted. Now, we cannot say ‘confine to three issues.’ This is about the capture of waqf lands,” the Bar and Bench reported.
Senior advocate Kapil Sibal, speaking for the petitioners, told the bench that, “It is a complete departure and an attempt to take over through creeping acquisitions of the waqf properties.” He argued that this violates the rights of Muslims to manage their religious affairs.
He further noted, “This act is for waqf protection but aimed at capturing the waqf. The law is designed so that waqf property is taken away without following any process. The officer deciding is a government officer and while it is decided, the property ceases to be a waqf and anybody can create a dispute. Now, come to what is a waqf? It is an endowment to Allah or God. This dedication cannot be transferred to anybody. Once a waqf always a waqf.”
In the further arguments, Kapil Sibal noted, “The condition that I have to be a practicing Muslim for five years before I create a waqf. Who will decide that then? If I am on my deathbed and I want to make a waqf, I have to prove that I have been practicing Muslim. This is per se, unconstitutional.”
He added, “Next, if a scheduled tribe is a Muslim and wants to make a waqf.. then such property is not a waqf at all and is expropriation at the face of it and the right under Article 25 is taken away.”
The senior advocate further argued, “Next, the right to manage waqf property has been taken away. Under Section 9 of the new Act, most members of the Central Waqf Council are now non-Muslims—12 non-Muslims and only 10 Muslims. Earlier, the council was made up entirely of Muslims. Now, all members are nominated. They capture the waqf, expropriate the waqf. Then there is also a violation of Article 26 and 27. Then comes the CEO of the board, who shall be appointed by the State and also shall also be non-Muslim.”
However, the CJI said noted that courts will interfere only if a glaring case is made out. “There is a presumption of constitutionality for the statute and courts cannot interfere unless a glaring case is made out. This is what we have been taught since college.”
The Hindu further reported, that Senior advocate Abhishek Manu Singhvi disputed the government’s claim of a 116 percent rise in waqf properties between 2013 and 2024, stating that the increase was due to an updating exercise when waqf data was first uploaded to the portal in 2013. He argued that listing existing waqfs on the portal was wrongly portrayed as growth.
Singhvi pointed out that out of the total 8.72 lakh waqf properties, over 4 lakh—about 50 percent—are waqfs-by-user.
He also highlighted that, according to the Joint Parliamentary Committee (JPC) report, waqf surveys were conducted in only 5 of the 28 States and 4 Union Territories.
The Supreme Court during earlier hearing issued a notice to the Union 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 Union government, however, opposed the idea of an interim stay.
The then Chief Justice also expressed concern over violent incidents reported in some parts of the country in reaction to the new law.
The Supreme Court recorded in its order the Solicitor General’s assurance that no appointments would be made to the Central Waqf Council or State Waqf Boards under Sections 9 and 14 of the Waqf (Amendment) Act, 2025 and added that no existing waqf properties will be denotified until the next date of hearing.
In a preliminary 1,332-page affidavit, the Union government urged the top court to dismiss the pleas challenging the validity of the Waqf Act, 2025, pointing out a “mischievous false narrative” surrounding certain provisions of the law.
The government claimed a “shocking increase” of 116 percent in the number of Waqf properties in the country since 2013. It also opposed the arguments over the necessary registration of “Waqf by user” properties till 8 April, saying if the provision is interfered with by an interim order, it would amount to the “creation of a legislative regime by a judicial order”.
However, the All India Muslim Personal Law Board (AIMPLB) accused the Union government of submitting incorrect data in the Supreme Court in the Waqf case and sought action against the officer concerned for filing a “false affidavit”, reported Hindustan Times.
“It appears that in its affidavit, the Union of India is suggesting that all the properties registered as Waqf before 2013 were immediately uploaded on the WAMSI portal, when it became operational. At page 158, the first column with the title ‘number of properties in 2013’ to say that the number of Waqf properties reflected therein were the only registered properties is mischievous,” the AIMPLB said.
“The deponent of the counter-affidavit has not been candid to this court and, it appears, has carefully avoided making a statement that ‘all the registered Waqf properties were uploaded on the web portal in the year 2013’. Since this crucial aspect is missing in the affidavit, the sanctity of this chart itself is seriously doubtful,” it added.
It has said that the Union must file an affidavit and state that the number of properties reflected on the Waqf Management System of India Project portal contained all the registered Waqfs as on 2013.
