The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act 2025.
The Bench of Chief Justice of India BR Gavai and Justice AG Masih have been conducting consecutive hearing in the matter on the point of interim orders for the past two days.
The Apex Court orally said during the proceedings that the requirement of registration of Waqfs had been there under the previous laws of 1923 and 1954.
The petitioners began their arguments on May 20, followed by the Centre’s submissions on May 21.
Solicitor General Tushar Mehta today started by addressing the concerns about Section 3E, which bars the creation of Waqf over lands falling under Scheduled Areas. The SG said that this provision was created for the protection of Scheduled Tribes.
On a query from the Court regarding the rationale behind the provision, the SG said the creation of waqf was irreversible and it might prejudice the rights of the vulnerable tribal population.
SG Mehta contended that although the JPC said the tribals may follow Islam, they had their separate cultural identity.
Expressing disagreement, the Bench observed that it the argument did not appear to be correct. Islam was Islam. Religion was the same.
Even if that was the case, it was not a glaring ground to stay the Act, noted the SG.
He said a common man was unable to purchase the land of tribals because of state law restrictions. If he created a waqf and the mutawalli did what he wanted to do. Please see whether the provision was so atrocious that it needed to be stayed, he added.
Regarding the provision of barring non-Muslims from creating Waqfs, the SG pointed out that only in the 2013 amendment, non-Muslims were given such rights. In the 1923 law, they were not allowed, as there were concerns that this could be used as a device to defraud creditors. In any case, non-Muslims could make donations to waqfs. A Hindu could donate to waqf. If a Hindu person really wanted to create a waqf, he may do that, added the SG.
Regarding the condition of five-year practice of Islam to create waqf, the SG said the Muslim Personal Law (Shariat Application) Act also required a person to make a declaration regarding the practice of religion. He pointed out that the condition of five years was not intended to defeat the rightful claims of any person.
Earlier, the SG had said that when petitions challenging the Waqf Act 1995 were filed in the Supreme Court, they were asked to go to the High Courts, and those parties have raised an argument that similar treatment should be given to the petitioners challenging the 2025 Amendment Act.
He reiterated that the provisions were not atrociously ‘unconstitutional,’ so as to warrant a stay at the interim stage.
Senior Advocates Maninder Singh (appearing for Odisha), Rakesh Dwivedi (Rajasthan), and Ranjeet Kumar (Haryana), also made brief submissions supporting the Amendments. Kumar also represented a tribal organisation supporting the 2025 amendments.
Dwivedi contended that the concept of ‘waqf-by-user’ was introduced in the Indian soil by a single sentence in a judgment of the Privy Council. It was untenable to make arguments by comparing a Parliamentary law with certain State laws on Hindu religious endowments. In Rajasthan, a waqf claim was made over a 500-acre land given for mining purposes.
Senior Advocate Kapil Sibal refuted the SG’s submission of yesterday that the proviso to Section 3C only enabled the Government to change the revenue entries and that the title or the possession of the waqf property would not be affected.
The language of the provisions was very clear. The property could not be regarded as a waqf till a designated government officer completed enquiry on whether there was encroachment of government property. When the language of the statute was so, neither the submission of the Solicitor General nor the affidavit of the Government, could change its meaning, noted Sibal.
He pointed out that as per the proviso to Section 3(1)(r), waqf-by-user, even if registered, would not be a waqf if there was a dispute regarding the ownership or if it was a government property. The effect of this provision was that all waqf-by-user properties were de-recognised, even without any determination of the dispute.
The Apex Court pointed out at this juncture that the registration was not a new requirement and mandated in previous enactments as well.
The Bench said it had studied the Acts from 1923. Technically in 1923, there was no provision for registration. But information about the waqf had to be provided. From 1954, registration was required. The 1976 report explained why registration was necessary. From 1923 till 2025, over a period of 100 odd years, the scheme of various enactments had emphasised on registration, it added.
Sibal said that in Delhi, only two waqfs were registered. In Jammu & Kashmir and Telangana, no waqfs are registered. They could not be registered because of the failure of the state governments from 1954 onwards. Because of that, the whole community was going to be penalised.
He claimed that the survey commissioners did not do their job of surveying the properties & registering the Waqfs, and the community members were facing the punishment.
The Senior Advocate said it was a State responsibility by the statute, which they did not discharge. They could not take advantage of their own wrong. This was totally unacceptable, he added.
Speaking about Section 3D of the Act, he said it was never part of the draft approved by the JPC.
Senior Advocate Rajeev Dhavan countered the SG’s argument that Waqf was not an essential religious practice. He said the submission was contrary to the JPC’s report and the Union’s own counter. He asserted that charity was integral to the Islamic faith. No outside authority had any right to say that these were not essential parts of right, he added.
Senior Advocate AM Singhvi contended that the registration requirement of the Act, as per amended Section 36(1), was creating a ‘vicious circle,’ as waqf-by-user, which was now abolished, could not be registered. How could something, which has been abolished, be registered, he asked.
He pointed out that the provision further said the property could not be registered if the Collector thought that it was a government property. Sections 36(1), 36(7A), 36(10) were thus creating a ‘vicious circle,’ he added.
Singhvi said there was no other Act which made a condition that a Muslim must profess religion for five years without contrivance. This was imposing a reverse burden of proof. Such provisions were not applicable to any other faith, he added.
Senior Advocates Huzafa Ahmadi and AM Dhar also made brief submissions for the petitioners. Ahmadi focused on Section 3E, stating that it affected the rights of a Muslim belonging to Scheduled Tribes. If the object was the protection of tribals from illegal transfer, the provision did not subserve it. The only object that was subserved was that a Muslim tribe was singled out and prevented from making a dedication, noted Ahmadi. He further raised concerns over the application of the Limitation Act and its impact on evacuee property declarations. Dhar cited certain verses to prove that the concept of waqf has Quranic origins.
As the Court was about to rise, an intervenor from the respondent side made a brief submission, saying that she was representing a villager from Tamil Nadu, whose entire village had been declared as a waqf land, including a Chola-era temple. She requested that her submissions also be taken on record.