Read Time: 10 minutes

Synopsis

While hearing a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025, there were sharp exchanges between the bench led by Chief Justice of India Sanjiv Khanna and Solicitor General Tushar Mehta regarding the composition of the Central Waqf Council. 

The bench, also comprising Justice Sanjay Kumar and Justice KV Viswanathan, questioned the government’s rationale for allowing a majority of non-Muslims in the Waqf advisory bodies while denying the same logic to Hindu endowment boards.

“Mr. Mehta, are you saying that from now on, you will allow Muslims to be part of Hindu endowment boards? Say it openly,” CJI Khanna asked pointedly, after it was revealed that, apart from two ex-officio members, only eight out of twenty-two members of the Waqf Council would be Muslims.

In a heated exchange, the Solicitor General appearing for the Union of India responded, “Then, if we go by their logic, even this bench cannot hear the case.”

To this, the CJI firmly replied, “What! When we sit here, we lose our religion. For us, both sides are the same. You cannot compare judges with members of a religious advisory body.”

Court expressed concern that the present composition of the Board could result in the majority of the members being non-Muslim, with Justice Sanjay Kumar questioning why clause (c) of the Act mandates that only some members be Muslim. 

“The proviso doesn’t say that only two can be Muslims,” he remarked, warning that the Joint Parliamentary Committee's (JPC) minutes cannot override the text of the legislation.

Section 10 of the Waqf Amendment Act, 2025, reads as: "In section 9 of the principal Act, for sub-section (2), the following sub-section shall be substituted, namely:— “(2) The Council shall consist of— (a) the Union Minister in charge of waqf—Chairperson, ex officio; (b) three Members of Parliament of whom two shall be from the House of the People and one from the Council of States; (c) the following members to be appointed by the Central Government from amongst Muslims, namely:— (i) three persons to represent Muslim organisations having all India character and national importance; (ii) Chairpersons of three Boards by rotation; (iii) one person to represent the mutawallis of the waqf having a gross annual income of five lakh rupees and above; (iv) three persons who are eminent scholars in Muslim law; (d) two persons who have been Judges of the Supreme Court or a High Court; (e) one Advocate of national eminence; (f) four persons of national eminence, one each from the fields of administration or management, financial management, engineering or architecture and medicine; (g) Additional Secretary or Joint Secretary to the Government of India dealing with waqf matters in the Union Ministry or department—member, ex officio: Provided that two of the members appointed under clause (c) shall be women: Provided further that two members appointed under this sub-section, excluding ex officio members, shall be non-Muslim.”

The SG responded that the clause was drafted to provide that choice, but Justice Kumar pointed out that other clauses did not specify Muslim membership, thus allowing for non-Muslim participation.

The Solicitor General indicated a willingness to clarify the issue via affidavit. “I can put it on record,” he said.

Justice Viswanathan added that the presence of Muslim members is essential for practical reasons like access to mosques for inspection purposes. “There are issues of ingress and egress in mosques... such persons are needed who can visit and check,” he observed.

CJI Khanna also criticized the retroactive effect of the Act, referencing the historical context of waqf declarations. "Where a public trust was declared as waqf 100 or 200 years ago, you can’t now turn around and say it’s taken over by the Waqf Board," he emphasized.

To this, SG Mehta countered, explaining that a Muslim could choose to set up a trust instead of a waqf, but CJI Khanna rebuffed this notion, stating, "But you can’t rewrite history from a hundred years ago!"

Court also delved into the impact of the JPC's report, which SG Mehta noted is in the public domain and offers a rationale for the Act’s provisions, including the inclusion of two female members on the Board to ensure gender diversity.

"The structure is now more inclusive. Other Muslim sects, like the Bohras and others, will also have representation on the Board...Everything in it has a logic, rationale, and intent. For instance, two members will be women; it has become more inclusive," the Solicitor General submitted. 

The bench will continue hearing the batch of petitions tomorrow at 2 PM. 

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