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Synopsis

The Supreme Court today commenced hearing a batch of petitions challenging the constitutional validity of the Waqf Amendment Act, 2025.

Court was considering whether the matter should be decided by the Supreme Court directly or relegated to the high courts, ultimately leaning towards retaining the matter for adjudication by the apex court.

The bench of Chief Justice of India (CJI) Sanjiv Khanna, Justice Sanjay Kumar, and Justice KV Viswanathan will continue hearing the batch of petitions tomorrow at 2 pm. 

At the outset, CJI Khanna laid down three possible approaches: the court could decide the matter itself, relegate it to a common high court, or call all related petitions to be heard together. Stressing efficiency, he said, “Obviously we can’t hear everybody.”

The CJI clarified that all petitioners may not be heard individually and offered senior advocates the opportunity to streamline their submissions.

Senior Advocate Kapil Sibal, appearing for one of the petitioners challenging the Amendment Act, opened the arguments, asserting that the amended legislation intrudes into the "essential and integral parts" of Islamic faith, referring specifically to Articles 25 and 26 of the Constitution.

Sibal challenged several provisions, including Sections 3(r), 3A(2), 3(C), 3(E), and 7A, arguing that the law empowers the State to assess one’s religious identity and interferes in matters of inheritance and religious autonomy. “Who is the State to judge whether I am a Muslim?” Sibal argued, taking exception to the five-year practicing Muslim condition for setting up a waqf.

The CJI noted that Article 26 of the Constitution of India applies equally to all communities and reminded Sibal of legislative parallels like the Hindu Succession Act.

On Section 9 of the Act, Sibal pointed out that while the Central Waqf Council comprises 22 members, only 10 are Muslims, undermining the representative character of the Board.

When CJI Khanna queried whether the second proviso limits the Muslim membership to two (apart from ex-officio members), Sibal argued that such provisions dilute the religious autonomy guaranteed under Article 26.

Justice Viswanathan, however, cautioned against invoking “essential religious practices” indiscriminately. “Don’t mix it. Properties are secular in nature—only their administration may have religious dimensions,” he said.

Sibal also highlighted that while Hindu and Sikh endowment bodies consist largely of members from their respective communities, the Waqf Council's composition post-amendment may lack adequate Muslim representation.

The bench probed these concerns, with CJI Khanna questioning whether the current composition fairly reflected community representation.

Senior Advocates Rajeev Dhavan, AM Singhvi, CU Singh, Rajiv Shakdher, Huzefa Ahmadi, and Advocate Nizam Pasha also advanced arguments challenging various provisions. Singhvi underscored practical concerns, noting that 4 out of 8 lakh waqf properties are claimed through user, often without documentary proof, a practice acknowledged even in the Ayodhya judgment.

On the controversial issue of waqf by user, Sibal, Singhvi, and others argued that the doctrine is rooted in history and protected by precedent. Singhvi referred to para 118 of the Ayodhya judgment, stating that waqf by user is a “very old concept". He cautioned that deleting Section 2(r)(i) doesn’t erase the concept itself: “Just because someone frivolously claims Parliament is waqf doesn’t mean the doctrine is flawed.”

Responding to concerns of mass misuse, Singhvi pointed out that of over 8 lakh waqf properties, only 4 lakh are claimed as waqf by users, often, he alleged, through bureaucratic shortcuts.

The CJI interjected, remarking, "We’ve been told even the Delhi High Court stands on waqf land. We’re not suggesting all waqf by user claims are invalid, but there’s a genuine concern".

Dhavan supported Sibal’s submissions, emphasizing that waqf is central to Islamic practice. “Religious charity is a core tenet. It’s not merely administrative,” he said. Dhavan also flagged concerns about the removal of the requirement that the CEO of the Waqf Board must be Muslim.

From a historical lens, Senior Advocate Sanjay Hegde recalled the Akali Dal movement to regain Sikh control over Amritsar's religious institutions, drawing parallels to concerns over minority autonomy in waqf governance.

When Advocate Nizam Pasha submitted that waqf is akin to a public trust, CJI Khanna objected, noting, “Trusts enjoy certain benefits which waqf may not.”

The Solicitor General of India (SGI), Tushar Mehta, defended the legislation, stating that it followed a comprehensive review by a Joint Parliamentary Committee, which considered over 98 lakh representations. He clarified that waqf by user continues to be recognized if registered and that the law does not retrospectively nullify existing waqfs.

The bench repeatedly pressed the SG on whether the Act invalidates longstanding waqf properties established centuries ago and cautioned that legislative action cannot undo judicial decisions.

CJI Khanna emphasized, "You can’t rewrite history from a hundred years ago."

As arguments advanced, the court also raised concerns about the bar on civil suits and the adequacy of revenue and tribunal mechanisms under the new scheme. Justice Viswanathan pointed out that appeal mechanisms still exist under Section 81, countering suggestions that judicial review had been curtailed.

Near the close of proceedings, CJI Khanna acknowledged the petitions pending before high courts and expressed the court’s inclination to transfer them to itself for a consolidated hearing. The bench noted that around 140 petitions are pending and agreed to continue hearing the matter tomorrow at 2 PM. No interim relief was granted.

Moreover, before rising, the CJI remarked on the “disturbing” violence erupting across parts of the country over the issue, assuring that the matter is now before the court and will be decided judicially.

The hearing will resume on April 17, 2025, at 2 PM.

Petitions Before the Court 

Aam Aadmi Party (AAP) MLA and Chairman of the Delhi Waqf Board Amanatullah Khan on Saturday, 5 April, moved the Supreme Court of India challenging the constitutional validity of the Waqf (Amendment) Bill, 2025. Khan moved the Apex Court through Advocate Adeel Ahmed. The petition seeks directions to declare the Waqf (Amendment) Bill, 2024, unconstitutional for violating Articles 14, 15, 21, 25, 26, and 300-A of the Indian Constitution.

Contending that the bill curtails the autonomy of Muslims, the petition states, "The bill curtails the religious and cultural autonomy of Muslims, enables arbitrary executive interference, and undermines minority rights to manage their religious and charitable institutions. The Petitioner, an elected representative and concerned citizen, seeks urgent intervention of this Hon'ble Court to safeguard the secular and constitutional fabric of the country."

All India Majlis-e-Ittehadul Muslimeen (AIMIM) Member of Parliament Asaduddin Owaisi also approached the Supreme Court challenging the bill. In his petition, Owaisi termed the Bill 'unconstitutional.' He argued that the bill brazenly violates the fundamental rights of Muslims and the Muslim community.

In a related development, Congress MP Mohammad Jawed, a member of the Joint Parliamentary Committee that reviewed the bill, also moved the Supreme Court challenging it. He contended that the bill violates Articles 14, 25, 26, 29, and 300A of the Constitution. He also raised concerns regarding the proposed inclusion of non-Muslim members in Waqf Boards and the Waqf Council.

About the Bill 

Notably, the bill, introduced by Union Minority Affairs Minister Kiren Rijiju on August 28, 2024, in the Lok Sabha, aimed to amend the Waqf Act, 1995, to address management issues surrounding waqf properties.

The amended Act provides that a waqf can be created by individuals practicing Islam for at least five years, replacing earlier provisions that included non-Muslims. In the Waqf laws of 1913, 1923, 1954, and 1995, waqf was exclusively defined as a permanent dedication of property by individuals professing Islam. However, a 2013 amendment to the 1995 Act broadened the definition, allowing property to be dedicated as waqf by persons of any faith, including non-Muslims.

The Act also replaces the survey commissioner with the District Collector, who will oversee waqf property surveys and resolve disputes over ownership. Additionally, the Act introduces mandatory non-Muslim members in both the Central Waqf Council and State Waqf Boards, breaking from the tradition of exclusively Muslim representation. It grants state governments the authority to nominate all board members, including two non-Muslims and members from Backward Classes of Muslims, Shias, and Sunnis.

Cause Title: Asaduddin Owaisi v. Union of India & Batch of petitions [W.P.(C) No. 269/2025]