Supreme Court Hears Petitions Challenging Constitutional Validity of Waqf Amendment Act, 2025

The Supreme Court on Tuesday commenced hearing a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025, for the purpose of interim relief.

The Bench of Chief Justice B.R. Gavai and Justice A.G. Masih, addressed submissions from Solicitor General (SG) Tushar Mehta and Senior Advocates Kapil Sibal and A.M. Singhvi and others representing the petitioners.

Scope of Hearing Disputed

In the morning session, Solicitor General Tushar Mehta urged the Court to confine arguments to three specifically identified issues, as his affidavit responded solely to those points. He sought to restrict the proceedings accordingly.

The petitioners’ counsel, Senior Advocate Kapil Sibal, opposed any such limitation, contending that the matter cannot be dissected into isolated issues. Sibal emphasized the broader concern of alleged executive “capture” and takeover of Waqf properties under the Amendment Act. Senior Advocate A.M. Singhvi echoed the sentiment, underscoring that the case should not be heard piecemeal.

Three Issues Identified by Solicitor General:

1. Whether properties declared Waqf by courts (via waqf-by-user or waqf-by-deed) should retain their status during the pendency of proceedings.

2. Whether the proviso in the Amendment Act, which suspends Waqf status of a property during a Collector’s inquiry into its classification as Government land, should be stayed.

3. Whether membership in Waqf Boards and the Central Waqf Council (excluding ex-officio members) must be restricted to Muslims.

Petitioners Argue ‘Non-Judicial’ Executive Takeover

Sibal argued that the 2025 Act facilitates a non-judicial, executive-driven process enabling arbitrary dispossession of Waqf properties merely on the basis of disputed claims. He explained how an officer senior to the Collector is appointed to investigate disputes, during which the property can be taken away without due process.

Highlighting the religious sanctity of Waqf properties dedicated to Allah, Sibal explained their maintenance relies primarily on charitable contributions from the community. He contrasted Waqf properties with temples and dargahs, noting that the Amendment undermines the communal and religious management of such properties by altering their essential character.

Legislative History and Registration Debate

Sibal traced the legislative history from 1913 through successive Waqf Acts culminating in the 2025 Amendment, emphasizing a “complete departure” from prior frameworks. He highlighted the judicially recognized doctrine of ‘waqf by user’, where continuous religious or charitable use without formal registration established Waqf status, now being discarded.

The Court questioned whether registration was mandatory under earlier laws. Sibal clarified that while registration was required, there were no prescribed consequences for non-registration affecting the nature of the Waqf. The Court recorded this submission.

Conflict with Ancient Monuments Laws

Addressing the implications of declaring Waqf properties as ancient monuments under the 1904 and 1958 Ancient Monuments Acts, Sibal submitted that the Amendment’s provisions allowing “complete takeover” violate the right to religious freedom guaranteed under Articles 25 and 26 of the Constitution.

CJI Gavai noted that religious practices continue at protected sites like Khajuraho despite government custodianship. However, Sibal asserted that the Amendment’s provisions undermine these rights and “mark a complete departure” from the protection of religious worship preserved under earlier laws.

Additional Constitutional Challenges

Sibal highlighted further contentious clauses, including:

- A requirement that one must have practiced Islam for five years before creating a Waqf, raising questions on enforcement and constitutionality.

- Exclusion of Scheduled Caste and Scheduled Tribe areas from Waqf status, potentially nullifying long-standing Waqfs.

- Alterations to the composition of Central and State Waqf Boards, now dominated by non-Muslim nominated members, diluting Muslim community control.

- Removal of the mandate that the Waqf Board CEO be Muslim, facilitating further government control.

Concerns Over Due Process and Judicial Oversight

Sibal cautioned that disputes over Waqf properties are decided without any adjudicative procedure, with the government acting as “judge in its own cause.” He criticized the absence of prescribed inquiry procedures, timelines, or meaningful recourse, effectively allowing government authorities to unilaterally strip properties of their Waqf status and amend records accordingly.

Under the 2025 Act, only aggrieved parties may approach Waqf Tribunals post-facto, while the government escapes judicial scrutiny, Sibal submitted.

Presumption of Constitutionality and Interim Relief

The Court indicated that interim relief would be considered only upon demonstrating a “very glaring case,” emphasizing the presumption of constitutionality of legislation. Sibal urged that a prima facie case has been made, warning of irreparable harm if the Amendment’s provisions are enforced.

Post-Lunch Session

Sibal clarified an earlier reference to the requirement of waqf registration under the 1954 Act, not 1923. He raised serious concerns over the inclusion of protected monuments, such as Jama Masjid and Sambhal, under waqf listings, arguing that once declared protected, such sites lose their original religious character.

He criticised the manner in which Sections 3(D) and 3(E) were introduced in Parliament, without discussion in the Joint Parliamentary Committee and with rules suspended, calling these "deeply disturbing features."

Sibal contended that the 1995 Act had a detailed mechanism for identifying and registering waqf properties, which has now been dismantled. "My right to litigate is lost; my property is taken over without remedy," he submitted. He also highlighted the dilution of Muslim representation in Waqf Boards and argued that religious endowments must be managed by members of the respective faith.

Justice Masih questioned assumptions about non-Muslim majorities, while CJI Gavai sought clarity on statutory roles and composition.

Senior Advocate Rajeev Dhawan criticised the omission of key provisions and argued that the amendments lack proportionality and violate Articles 26 and 29. He cited judgments including Ratilal and T.M.A. Pai, asserting that the Act disregards constitutional safeguards.

Singhvi flagged the arbitrariness of Section 3(r), calling its requirement for proof of practising Islam unconstitutional under Article 15. He further argued that the amendment risks undermining the Places of Worship Act, 1991.

The Centre will begin its defence tomorrow. Hearing to continue on Wednesday.

Previously before Court

It is to be noted, that on May 5, the Supreme Court Bench led by then CJI Sanjiv Khanna had observed that the matter will be heard by a different bench as he was demitting office on May 13.

During the brief proceedings, then CJI Khanna had remarked that the Bench had not delved into the counter affidavit in depth. He had noted that while certain issues around registration and statistics had been raised, “those will require closer scrutiny.” He clarified that he did not intend to pass any interim order or reserve judgment at this stage. “If all parties agree, we can list the matter before a bench led by Justice Gavai on Wednesday,” the CJI had suggested.

The All India Muslim Personal Law Board, in a rejoinder to the preliminary affidavit filed by the Centre, last month have asserted that the recent legislative changes in the Waqf (Amendment) Act, 2025, infringe upon fundamental rights and were passed through a flawed parliamentary process. The Board argued that the Respondents’ defense, that the amendments do not affect essential religious practices, is legally untenable. It stated that compelling the Petitioners to undergo the “Essential Religious Practices” (ERP) test is not only constitutionally misplaced but also ignores the evolution of Indian constitutional jurisprudence.

Defending the Act, the Association for the Protection of Civil Rights (APCR) has strongly opposed the plea, terming it “misleading,” “surreptitious,” and a “misuse of judicial process.” The APCR has contended that the petition lacks locus standi, fails to present any credible evidence or injury, and seeks to propagate unsubstantiated communal narratives regarding the alleged encroachment of Hindu religious land.

Last month, the Central Government has submitted a detailed preliminary affidavit before the Supreme Court, defending the constitutional validity of the Waqf (Amendment) Act, 2025, and opposing interim reliefs sought by petitioners challenging the law.

On April 24, in a detailed preliminary counter affidavit filed before the Supreme Court, the Kerala State Waqf Board had strongly opposed the Waqf (Amendment) Act, 2025, describing the newly enacted law as “unconstitutional,” “discriminatory,” and “subversive of secularism.” The Board had warned that the amendments pose a serious threat to the autonomy of religious institutions, the federal structure of the Constitution, and fundamental rights guaranteed under Articles 14, 15, 25, 26, and 30.

It is to be noted that on April 17, the Supreme Court had directed the Centre not to act upon the controversial provisions of the Act until further hearing, allowing State Governments and Waqf Boards to submit their responses.

The Bench had recorded that Solicitor General (SG) Tushar Mehta, appearing for the Union of India, assured the Court that the Centre would file its preliminary response within 7 days.

Earlier, Senior Advocate Kapil Sibal, appearing for one of the petitioners challenging the Waqf Amendment Act, had argued 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 had argued, taking exception to the five-year practicing Muslim condition for setting up a waqf.

The Court had 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 had 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.

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.

Case Title: In Re: The Waqf (Amendment) Act, 2025 (1)