Supreme Court Rebukes Centre on Waqf Law: No De- Notification of Declared Properties

New Delhi: In a significant development, the Supreme Court on Wednesday raised serious concerns over key provisions of the Waqf (Amendment) Act, 2025, during hearings on multiple petitions challenging its constitutional validity. The Court's observations signalled potential judicial resistance to the Centre's position, casting doubt on the legality and rationale behind the amended law. A bench led by Chief Justice Sanjiv Khanna, along with Justices Sanjay Kumar and K V Viswanathan, remarked that properties declared as Waqf by courts—whether through waqf by user or by deed—should not ideally be de-notified while the legal challenge is pending. The Court's comments were seen as a caution to the Centre against taking irreversible administrative steps amid ongoing litigation.
The bench also expressed reservations about a key proviso in the amended Act, which states that a property under investigation by the Collector for its status as government land would not be treated as Waqf during the inquiry. While not issuing a binding order, the Court indicated that this clause raises concerns and suggested that it may not be appropriate to enforce it until the legal questions are resolved—providing interim comfort to petitioners. In a sharp exchange with Solicitor General Tushar Mehta, the bench questioned the rationale for disallowing waqf by user, pointing out that many waqfs were historically established and maintained without formal deeds. “How will you register such waqfs by user? What documents will they have? It will lead to undoing something... You cannot rewrite the past,” the Court said, underscoring that even colonial-era judgments had recognised the legitimacy of this practice. Waqf by user refers to properties that are treated as religious or charitable endowments due to their long-standing, uninterrupted religious use—even without a formal declaration.
The Centre also faced pointed questions about the religious composition of Waqf Boards. While the Court appeared to accept that ex-officio members could be of any faith, it noted that all other members ought to be Muslims, challenging the neutrality the Centre claimed in its new provisions. In a particularly telling moment, the bench asked whether, under the same logic, Muslims would now be allowed to serve on Hindu religious trusts—urging Mehta to “say it openly.” This line of questioning highlighted possible inconsistencies in the government's approach to religious endowment governance. Mehta defended the legislation, noting it was framed after 38 sittings of a joint parliamentary committee that reviewed over 98 lakh memorandums. However, the Court appeared unpersuaded on several counts.
Senior advocate Kapil Sibal, representing the petitioners, argued that the Act unconstitutionally restricts waqf creation to Muslims and questioned the state’s authority to determine religious identity or practice. “How can the government say only those who have practised Islam for the last five years can create waqf?” Sibal asked. Senior advocate Abhishek Manu Singhvi stressed that the matter has nationwide implications and should be handled by the apex court, not referred to individual high courts. Huzefa Ahmadi also defended the traditional practice of waqf by user, calling it a deeply rooted feature of Islamic endowment that could not be dismissed through legislative changes.
The Waqf (Amendment) Act, 2025, received presidential assent on April 5 following heated parliamentary debates. It passed in the Rajya Sabha with 128 votes in favor and 95 against, and in the Lok Sabha with 288 voting for and 232 against. Anticipating legal challenges, the Centre had filed a caveat on April 8 to ensure no orders were passed without hearing its side. Nonetheless, the Supreme Court’s critical observations and probing questions have placed the government on the defensive. Over 70 petitions have been filed against the Act, including by AIMIM leader Asaduddin Owaisi, the All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the DMK, and Congress MPs Imran Pratapgarhi and Mohammad Jawed. The matter is scheduled to resume at 2 PM on Thursday, with the Centre expected to offer a more detailed response to the Court's concerns.