The Supreme Court on Wednesday expressed its concerns over the newly enacted Waqf law, questioning three aspects of the statute – the status of “waqf by user” properties declared so under earlier court orders, the majority presence of non-Muslim members in the Waqf Council and Waqf Boards and disallowing a property from operating as waqf property if it is disputed as a government plot.
The bench headed by Chief Justice of India (CJI) Sanjiv Khanna said it was inclined to pass an interim order pausing the operation of the law on these aspects, but agreed to give the Centre and states an opportunity on Thursday, when the case is due to be heard next.
In its first examination of the law, which is under challenge in a batch of over 70 pleas, the bench said its concerns were borne out of apprehensions raised by the petitioners, comprising members of Parliament, Muslim scholars, religious bodies and political parties, which said the law was in breach of articles 25 and 26 of the Constitution.
The bench, also comprising justices Sanjay Kumar and KV Viswanathan said, “When a legislation is passed, courts generally do not interfere.If a property declared as waqf by user is denotified, it can have huge consequences.”
A waqf is a Muslim religious endowment, usually in the form of landed property, made for purposes of charity and community welfare. The act, passed by Parliament and ratified by the President earlier this month, implements major changes in the regulation and governance of India’s waqf boards.
It scraps the waqf by user provision – where a property is acknowledged as waqf because it has been used for religious activities for some time, despite there being no official declaration or registration as waqf – for future cases, permits women, Shia sects and government officials to be members of waqf bodies, and gives overriding power to senior officials to determine if a government property belongs to a waqf.
The amendment also allows only a person “showing or demonstrating that he is practising Islam for at least five years” to donate properties to waqf and stipulates that women and other rightful heirs can’t be denied their inheritance due to the creation of a waqf.
Referring to properties that were declared waqf centuries ago and which continued to remain waqf by user till the law came into effect, the court said, “We cannot rewrite the past. A property declared as waqf some 100 or 200 years ago, suddenly you turn around and say it cannot be waqf.”
The court also said it would be difficult to register properties built several centuries ago, referring to Section 36(7A), which deals with registration of waqf.
“Waqf property may have been constructed in the 14th or 15th century. Before the British came, we did not have any Registration Act. To now require them to produce a registration deed will not be possible,” said the bench.
The bench pointed out cases where court orders have recognised, identified and established properties as belonging to waqf. Raising concerns over these classes of properties, which may now become void by operation of law, the bench said, “Legislature cannot declare a decree or order of court as void, What it can do is to remove the basis of law that served the basis for passing the decree…There is an issue of concern.”
Solicitor general Tushar Mehta, appearing for the Centre, pointed out that courts have earlier ruled that identified and recognised waqf properties have to be registered, because this was the mandate even under the framework first established under the 1995 and the 2013 versions of Waqf Act, that got overhauled by the 2025 Act. However, the bench wished to know if properties recognised as waqf under court orders ran the risk of losing their status with the coming of the Act.
The Supreme Court also said the violence occurring during protests against the act was “very disturbing”.
“One thing that is very disturbing is the violence that is taking place. If the matter is pending here then it should not happen,” the CJI said.
Mehta agreed.
“They (protesters) think they can pressurise the system by this.” Senior advocate Kapil Sibal, appearing for a Muslim organisation, opposed the submissions of the law officer and said, “Who is pressuring who we don’t know.” The CJI then said there were “positive points in the bill” that should be highlighted.
The court turned its attention to another contentious provision in the Act – Section 3C, which said that “If any question arises as to whether any such (waqf) property is a government property,” an officer above the rank of collector shall conduct an inquiry and determine whether the property belongs to the government.
The court objected to the proviso that said, “Provided that such property shall not be treated as waqf property till the designated officer submits his report.”
“Is this fair? The moment the collector starts inquiry and even when he has not decided yet, you say that it cannot be treated as waqf. We want an answer – what purpose will be served by this proviso?”
It also said that the term “in dispute” is vague as it does not explain whether the dispute is pending in court or dispute in general. The court was referring to section 3(r) which said, “waqf by user will remain as waqf properties except that the property, wholly or in part, is in dispute or is a government property.”
The court indicated that a balance could be struck if the proviso is not made operational for the time being.
Senior advocates Sibal, Rajiv Dhavan and Abhishek Manu Singhvi who appeared for the petitioners said that the Act was a clear violation of fundamental rights of Muslims. Sibal said, “This Act is Parliament’s usurpation of 200 million people’s faith in the country.”
Singhvi said that out of every eight waqf properties, four are waqf by user and this concept has been recognised by judicial verdicts in the past. He argued that unless the basis of these judgments are removed, the law cannot be validated. He also questioned the role of the collector in deciding disputes to be a classic case of the government being the judge in their own cause.
Sibal argued that waqf forms an essential feature of Islam and under the 1995 Act, the Central Waqf Council which advises the government on administration of waqf properties consisted wholly of Muslims. He referred to the amended Section 9 in the new law which restricts Muslims to just eight people in a council of 22 members and Section 14 for Waqf Boards, providing essentially for four Muslims out of 11 nominated members in states and Delhi.
The bench asked Mehta, “Whenever it comes to Hindu endowments, do you allow Muslims to be members of these bodies? Say it openly. We are dealing with a Council dealing with religious affairs.” Solicitor general said that the Council’s composition was a matter of debate before the Joint Parliamentary Committee where Centre assured that the provision which says, “that two members appointed under this sub-section, excluding ex officio members, shall be non-Muslim.” it was intended that a maximum of only two non-Muslims will be there in the Council. He said that the new rule would apply only to Boards reconstituted after the coming of the Act.
Sibal pointed out that the word “only” is not part of the statute. The bench proposed a way out by suggesting, “Ex-officio members can be appointed regardless of faith but other members should be of Muslim faith.”
As the court was in two minds whether to issue notice or send all matters to be decided by any one high court, Mehta requested the court to hear and decide the matter. As the court was inclined to order a stay limited on the three aspects flagged by it, states supporting the law sought time to address arguments for which the matter is kept on Thursday.
The petitions heard by the court include those filed by All India Majlis-e-Ittehadul Muslimeen (AIMIM) MP Asaduddin Owaisi, Trinamool Congress MP Mahua Moitra, Rashtriya Janata Dal (RJD) MP Manoj Kumar Jha, Samajwadi Party MP Zia Ur Rehman, Congress MPs Imran Masood and Mohammad Jawed, besides political parties such as CPI, Indian Union Muslim League, DMK and YSRCP among others.