Supreme Court Pushes Centre to Defend Waqf Amendment

Court Questions Inclusion of Non-Muslims on Waqf Boards, Seeks Precedent

April 17, 2025

During the Supreme Court’s hearing on the constitutional validity of the Waqf (Amendment) Act, 2025, Chief Justice of India Sanjiv Khanna posed pointed questions to both the government and the petitioners. The Act, which came into force recently, has been challenged by several petitioners who argue that it infringes on religious freedoms and the administrative autonomy of the Muslim community.

The Court is weighing several contentious provisions and has indicated it may pass an interim order, though it refrained from doing so on April 16, postponing the matter to April 17 following the Solicitor General’s request for more time, according to The Indian Express. At the hearing, the Court is expected to either issue an interim order or further clarify its views.

At the heart of the legal battle are three key concerns, as noted by Mint.

First, the amendment eliminates the concept of “Waqf-by-user,” which had earlier allowed land to be recognised as waqf based solely on its continued religious or charitable use over time, even in the absence of formal documentation.

The Chief Justice acknowledged there had been misuse of this provision, but also emphasised that its complete removal would harm genuine cases. He warned that denotifying waqf-by-user properties could have serious consequences, suggesting that this alone may justify exceptional judicial intervention even at this early stage of challenge.

The second point of friction is the introduction of non-Muslims into bodies that govern Muslim religious endowments.

The amended law restructures the Central Waqf Council and the State Waqf Boards to allow a significant number of non-Muslim members. For instance, Section 9 of the new Act permits only 8 Muslim members in a 22-member Central Council, while Section 14 allows just 4 Muslims in an 11-member State Board. This drew strong criticism from the bench, with the Chief Justice asking the government to cite any precedent where Parliament had allowed members of one religious community to be involved in the religious affairs of another.

When Solicitor General Tushar Mehta vaguely asserted that such examples existed, the bench pressed for specific instances but received no concrete answer.

Justice Viswanathan suggested that secular laws like the Bombay Public Trusts Act were not comparable, since those apply across religions and do not regulate community-specific religious affairs.

The third question concerns Section 3C of the amended Act, which gives an officer above the rank of District Collector the authority to decide whether a property in question is government-owned or waqf.

The Court pointed out that the law appears to treat the property as non-waqf even before the inquiry is complete, raising serious questions about fairness. The bench asked what purpose such a provision served if it presumed government ownership without waiting for the inquiry’s outcome.

The bench also reflected critically on the petitioners’ side.

Senior advocate Kapil Sibal argued that the Act undermines the Islamic principles of inheritance by regulating the creation of “waqf-alal-aulad”—a form of waqf that allows the waqif (donor) to dedicate property for descendants. Sibal suggested this could interfere with Muslim personal law and Article 26 of the Constitution, which protects the right of religious denominations to manage their own affairs.

But CJI Khanna countered that Parliament has historically legislated on inheritance, citing the Hindu Succession Act as an example, and said the existence of such laws is not, by itself, unconstitutional.

A broader legal context also hangs over the proceedings. The petitioners have sought to invoke the essential religious practices doctrine under Article 26, arguing that management of waqf is a core Islamic practice. But Justice Viswanathan cautioned against conflating issues, suggesting that this doctrinal claim may not be the right lens to examine administrative questions.

CJI Khanna observed that both sides had overlooked certain positive elements of the law. He refrained from elaborating on these points, but his comment suggests the Court is not inclined to strike down the entire Act without closer scrutiny of each part.

The Court’s oral observations—especially those hinting that the current case may merit an exception to the usual restraint against staying legislation—are significant. They indicate that the bench is seriously considering halting the enforcement of at least some provisions of the amended law until a final ruling is delivered.