New Delhi: The Supreme Court, on Tuesday, asked senior advocate Kapil Sibal to make a strong case for the judiciary to intervene in the Waqf (Amendment) Act, 2025.
“It is about Constitutionality…Courts don’t usually interfere…So unless you make a very strong case…Because the presumption is with regard to Constitutionality of the statute,” Chief Justice of India B R Gavai observed.
The bench of CJI Gavai and Justice Augustine George Masih is now hearing petitions against the Waqf (Amendment) Act, 2025.
Earlier, the Centre had argued against a blanket stay, citing presumption of Constitutionality. Solicitor General Tushar Mehta had submitted that the Court cannot stay a law made by Parliament when validity is presumed.
At the start of proceedings on Tuesday, Mehta urged the Court to restrict the ambit of the proceedings to the three limited questions outlined in the Centre’s affidavit.
Sibal and senior advocate Abhishek Manu Singhvi, appearing for the petitioners, contended that the challenge to the Act cannot be heard in a “piecemeal” manner. Sibal pointed out that former CJI Sanjiv Khanna had not limited the number of issues for consideration and had agreed to hear the matter for interim relief.
Sibal argued that waqf is an endowment to Allah and that once an individual dedicates property to God, it acquires waqf status.
“These properties do not generate revenue and are preserved through charity. A dispute raised by an encroacher does not strip the property of its waqf character”, he submitted.
He further contended that the 2025 amendments mark a complete departure from the framework of waqf legislation developed over the decades.
The CJI then wanted to know if earlier versions of the Waqf Acts, from 1913 to 2013, mandated registration. “We will record your submission that earlier versions of the Waqf Act required registration, but consequences were not spelt out except removal of Muthawalli, and hence registration was not mandatory”, CJI Gavai said.
Sibal then clarified that before 1923, registration of waqf-by-user was not required. However, after 1923, registration became mandatory for all waqfs. He pointed out that under the 2025 Act, a structure once declared a protected monument or area would lose its waqf status.
The CJI then asked whether such a declaration would infringe upon the right of citizens to worship or continue their religious practices.
“The perpetuity of the dedicating is lost”. He points out that the 2025 amendments violate the fundamental rights enshrined under Articles 14 (right to equality), 25 (freedom to practice one’s religion) and 26 (freedom to manage religious affairs) of the Constitution,” Sibal replied.
He claimed that the 2025 amendments are expropriatory, would disturb the dedication of the property as a waqf and was a violation of the fundamental rights to manage religious affairs, equality and dignity. He pointed to the fact that under this amended Act, a person must prove they are a “practising Muslim” to dedicate property as waqf. In that way, the Act fails to recognise waqf dedications by people belonging to the Scheduled Tribe who are also Muslims.
He also contended that the right to manage waqf properties has been undermined, as the majority of the Central Waqf Council members will be non-Muslims under the new law. According to him, the State Waqf Boards were elected to power. Now all the members are nominated. Out of the total 11 members, 7 can be non-Muslims.
“Conceptually, they have captured the Boards”, Sibal said.
He claimed that this constitutes a ‘creeping acquisition’ of waqf properties. He also maintained that irreparable damage will be caused if the 2025 amendments to the law are not stayed.
“A Muslim has to prove that he is a Muslim to dedicate his property as waqf, and a district collector decides if a property is waqf or government property. The damage would be irreparable”, he said, highlighting the extent of executive interference under the 2025 Act.
“If any government body or local authority — even a Panchayat — raises a dispute over a waqf property, the property loses its waqf status under Section 3 of the Act. The requirement to prove one is a practising Muslim directly violates Article 25 of the Constitution, which guarantees the right to freedom of religion,” Sibal said.
He argued that the 2025 Act does not lay down a proper procedure for the enquiry conducted by the designated officer to determine whether a property is waqf or government-owned.
“The officer conducting the enquiry is a government officer. He effectively acts as a judge in his own cause. The waqif — the person making the dedication — gets an opportunity to approach the Waqf Tribunal only after the officer concludes that the property is not waqf,” Sibal submitted.
He also argued that the 2025 amendments pave the way for waqf properties to lose their status with retrospective effect.
“How will we know the creator of a waqf-by-user that dates back hundreds of years, even if it is registered? Where do we find the records for such dedications?” Under the amendments, if a muthawalli (manager of a waqf) cannot name the original creator of the waqf, they could face six months’ imprisonment and a fine,” the senior advocate argued.
He also claimed that the 2025 Act uses the Ancient Monuments and Archaeological Sites and Remains Act, 1958, to curtail minority rights. “The Ancient Monuments and Archaeological Sites and Remains Act, 1958, is secular and was never intended to limit minority rights. However, the 2025 Act uses this law to circumscribe minority rights. It states that declaring a structure or area as an ancient monument would deprive it of its character as a waqf,” Sibal said.
The Union government had earlier told the Supreme Court that the “shocking” misuse of waqf provisions enabled “rampant encroachments” into private and government properties, leading to a 116% rise in waqf lands between 2013 and 2024, a phenomenal high unmatched even in the Mughal period.
“After the amendment brought in the year 2013, there is a 116% rise in the auqaf [assets] area. It is submitted that right before even Mughal era, pre-Independence and post-independence eras, the total of wakfs created was 18,29,163.896 acres of land in India. Shockingly after 2013, in just 11 years, the addition of wakf land is 20,92,072.536 acres… The figure of 20 lakh acres is additional and not the total figure. The total comes to 39,21,236.459 acres of land,” the Ministry of Minority Affairs has claimed in a report.
The Kerala government has also decided to challenge the Constitutional validity of the Act in the Supreme Court. The State government has issued instructions to its legal officers to file an impleading petition in the matter, state law minister P Rajeeve said.
