Waqf Amendment Act: Supreme Court moots stay on non-Muslims in waqf boards, de-notifying existing waqf land

The Supreme Court on Wednesday mooted a stay on certain key provisions of the recently passed Waqf (Amendment) Act, 2025, including the inclusion of non-Muslims in the Central Waqf Council and Waqf Boards, powers of collectors in deciding disputes over Waqf properties and provisions on de-notifying properties declared as waqf by courts. .A three-judge Bench of Chief Justice of India Sanjiv Khanna and Justices PV Sanjay Kumar and KV Viswanathan did not pass any order to that effect but will hear the matter again tomorrow. .The Court today remarked that some of the provisions of the Amendment Act could have grave ramifications and, hence, it would consider passing an interim order."Regarding ex parte stay, we (Court) have some discretion. We are all concerned about it. When a law is passed, courts do not pass an order in the admission stage. But in this case, we think that if there is waqf by user and it is denotified, then there are grave ramifications," the Court remarked.Therefore, the Bench said that it will consider passing the following interim order:"Our interim order will balance equities. We will say -1. Whichever properties were declared by court to be waqf will not be de-notified or be treated as non waqf ... whether it is waqf by user or not; 2. Collector can continue with proceedings .. but the provision will not be given effect to;3. Regarding Waqf boards and Waqf Council, ex officio members can be appointed. But the other members have to be Muslims.".During the hearing today, the Court also asked the Central government whether it would allow the inclusion of non-Hindus in bodies governing temples as has been done in the present law with regard to waqfs. "Mr. Mehta, are you saying that from now on, you will allow Muslims to be part of the Hindu endowment boards? Say it openly," the Court remarked, addressing Solicitor General (SG) Tushar Mehta who represented the Central government.SG Mehta said that he can state on affidavit that not more than two members will be non-Muslims.The Court further highlighted that only eight out of the twenty-two members of the Waqf Council would be Muslims under the amendment Act.This led to an exchange of words between the Bench and the SG."So, as per the Act, eight members are Muslims. Two judges may not be Muslims! Then the rest are non-Muslims," the Bench said. "Then this Bench also cannot hear the case," the SG remarked in reference to the Hindu identity of the three judges on the Bench. This drew a sharp response from the Bench."What! When we sit over here, we lose our religion. For us, both sides are the same. How can you compare it with the judges? Why not have non-Hindus also in the advisory board of Hindu endowments then?" the Court said."Are you ready to make a statement before the court that maximum two (only) - apart from the two ex officio members will - be non-Muslims?" the Bench persisted. "I can put it on affidavit," the SG assured.The hearing will resume tomorrow..Will you allow Muslims to be part of the Hindu endowment boards?Supreme Court .The Lok Sabha had passed the law on April 3, while the Rajya Sabha cleared it on April 4.The new law amended the Waqf Act, 1995, in order to address the regulation of Waqf properties, that is, properties dedicated exclusively for religious or charitable purposes under Islamic law.The amendment Act received Presidential assent on April 5.A slew of petitions were filed before the top court challenging the amendment's validity, including by Congress Member of Parliament (MP) Mohammad Jawed and All India Majlis-e-Ittehadul Muslimeen (AIMIM) MP Asaduddin Owaisi.More such petitions followed in the ensuing days. The petitioners have contended that the amendment amounts to discrimination against Muslims. They have contended that the amendments selectively target Muslim religious endowments and interfere with the community’s constitutionally protected right to manage its own religious affairs..Background.The key challenge raised in the petitions is against the removal of ‘waqf by user’ (property that is deemed to be waqf based on its continuous, uninterrupted use for religious or charitable purposes, even if no formal declaration is made) from the definition of waqf. The petitioners contend that the withdrawal of recognition to waqf by user would jeopardise the status of older mosques, graveyards, and oral dedications that have historically existed without formal title. The omission runs contrary to legal precedents, including the Supreme Court’s own recognition of the doctrine in the Ayodhya judgment, the petitioners say. .Further, the inclusion of non-Muslim members in State waqf boards and the Central Waqf Council has also been assailed as diluting the right of religious denominations to manage their own affairs, as guaranteed under Article 26 of the Constitution. Another provision under challenge is Section 3(r), which restricts the ability to create a waqf to Muslims who have practiced the religion for at least five years and who legally own the property being endowed. The petitioners have contended that this disqualifies a wide range of historically valid waqfs and contradicts provisions of the Muslim Personal Law (Shariat) Application Act, 1937..Meanwhile, six Bhartiya Janta Party-ruled States have also moved the Supreme Court in the matter, albeit in support of the amendment. These intervention applications have been filed by the States of Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh and Assam. These States have primarily highlighted how they would be affected in case the constitutionality of the Amendment Act were to be tinkered with..Hearing today.When the matter was taken up for hearing today, the Court said that it needs answers to the following issues:- Whether Supreme Court should entertain or send it to High Court?- What are the points petitioners intend to argue? Senior Advocate Kapil Sibal, appearing for one of the petitioners, told the Court that the law interferes with an essential and integral part of faith and is hence, violative of the freedom to manage religious affairs under Article 26 of the Constitution."Let me broadly address what the challenge is about. Through a parliamentary legislation, what is sought to be done is to intervene in an essential and integral part of a faith. I refer to Article 26 and many provisions of the Act violates Article 26," he said. He referred to Section 3(r) of the amended law, which defines a waqf."Please see Section 3 (r) of the Unified Waqf Management Act. Please see the definition of waqf ... If I want to create a waqf, I have to show I am practicing Islam from the last 5 years. How should the State decide whether and how I am a Muslim or not?" Sibal asked.He proceeded to question the scope for State interference in laws governing Muslim inheritance through the amended waqf law."Who is the State to tell us how inheritance will be in my religion?" he asked "But with Hindus, it does happen. So parliament has enacted a law for Muslims ... Article 26 will not bar enactment of law in this case," the CJI said. "Inheritance in Islam is after death and they are intervening before that," Sibal replied."Further, if the government identifies or declares a property, it is not waqf. How can that be at all?" he added.He also raised objection as regards the role of Collector in deciding whether a property is a waqf or not, if a dispute arises."A collector is the officer designated to decide whether a property is waqf or not if there is dispute. This person is a part of the government and is thus a judge in his own cause. This is per se unconstitutional. This also says that property will not be a waqf till the officer decides so," Sibal pointed out..He proceeded to highlight how the law now allows non-Muslims to be part of Waqf Boards and Councils. "Now, the Waqf Council and Boards. Only Muslims had been part of such boards. Now even Hindus can be a part. This is direct usurpation of fundamental rights by parliamentary enactment," he contended.Sibal highlighted that as a consequence of the amended law, out of the 22 members in the Central Waqf Council, only 8 would be Muslims."It says excluding ex officio members ... Two is the minimum. All of them have to be Muslim as per Article 26 and here (under the new law), only 10 out of 22 are Muslims. Here, even one is too many," he said."So eight are Muslims here," Justice PV Sanjay Kumar said."Yes, correct. This is complete takeover through nomination. Please see the 1995 Act (earlier Waqf Act). It had all Muslims," Sibal responded..He also took exception to the provision mandating the execution of a waqf deed for the creation of a waqf."What's the problem?" the CJI asked. "There is a concept of waqf by user. Suppose I have a property and I want an orphanage there, what is the problem with that? Why should I have to register?" Sibal asked. "The registration will help," the CJI said. "But waqf by user is abolished! This is recognised by the Ayodhya judgment," Sibal replied. "The Section says, to avoid bogus claims, have a waqf deed," Justice Viswanathan weighed in. "Not that simple. Waqfs are created hundred of years ago. They will ask for waqf deed for 300-year-old property. That is the problem," Sibal responded..The Bench then asked Sibal about the Collector's role."They say the collector will decide if there is dispute. Is it amenable to tribunal," the Court asked. "Not at all," Sibal replied. However, Solicitor General Tushar Mehta rebutted the argument."The Section clearly says so," SG Mehta said."Limitation was not there in the 1995 Act," Sibal further pointed out. "But government can impose limitation.. we cannot say that it is unconstitutional if limitation is imposed," CJI Khanna opined. "But if they say suit not filed within two years... Here, many are waqf by users. They will get claim by adverse possession and encroachers will be legitimised," Sibal replied..Senior Advocate Rajeev Dhavan, also appearing for the petitioners, said that the law violates rights of Muslims to practice religion. "The basis of the constitutional attack is that it violates our right to practice religion. Charity is an essential religious practice of Islam. Earlier even CEO had to be Muslim and now no longer," he stated..Senior Advocate Abhishek Manu Singhvi highlighted that four out of eight lakh waqfs are waqf by user."Four out of eight lakhs are waqf by user. Imagine this now," he said."When we were in Delhi High Court, we were told that the land is a waqf land! Don't misunderstand us.. we are not saying all waqf by user is wrongly registered," CJI Khanna said."We have heard parliament is also on waqf land...We are saying you cannot throw a baby out with the bath water. Question is, have you removed the basis of the Ayodhya judgment?" Singhvi contended..He added that the new requirement that a person should have practiced Islam for 5 years to be eligible to dedicate property as waqf will have major ramifications."This is an aspect of contrivance - where you have to make the person visit the government continuously to show how you have practiced Islam for the last 5 years. This has all India ramifications," he said..Singhvi proceeded to urge the Court to stay some provisions of the Amendment Act."Some of these pernicious provisions have come into force immediately. We are seeking a stay on some of this, not the entire Act," he stated. .Senior Advocate CU Singh contended that the issue of essential religious aspect need not be examined at all and that the new law is violative of Article 26 even otherwise."Please see Article 26. I am not on essential religious feature argument. It is not needed at all. It says freedom to manage religious affairs subject to public order," he submitted. Among other submissions, he added,"See section 3(c). Once dispute is there ... it ceases to be waqf! Suppose a land is a waqf for 300 years. Now, once anyone just says that it is government land, the Collector can take 50 years to decide and it will not be a waqf till then.".Senior Advocate Rajiv Shakdher appeared for Amanatullah Khan who is among the petitioners opposing the new waqf law."I (Shakdher) come from Kashmir. I am a Kashmiri Pandit. We have temple there. Suppose the majority Muslims come and say that it is our land, is it justified? The same thing is happening here. Now Collector says 'I will decide and I am all mighty'," Shakdher added..Senior Advocates P Wilson and Huzefa Ahmadi were among the other counsel who represented petitioners opposing the requirement of 5-years of practice as Muslim to create a waqf."Through this entire enactment, they place a probation period of 5 years for a person to prove that he is a Muslim," Wilson said.."The expression used is 'practicing Islam for 5 years.' ... It has the effect of suspending fundamental rights for 5 years. So will I be told that 'Mr Ahmadi you don't pray 5 times a day that is why you are not Muslim'? There is vagueness," Ahmadi added..Solicitor General Tushar Mehta, on the other hand, defended the Amendment Act, arguing that it was passed after detailed consideration. "You are dealing with legislation. There was a joint parliamentary committee. 38 sittings were there. It visited many areas.. it examined 98.2 lakh memorandums. Then it goes to both houses and then law was passed," he highlighted.The Bench proceeded to question him about the controversy surrounding 'waqf by user' deletion and the inclusion of non-Muslims in the Waqf Council and Boards.."Give us examples. Does Tirupati board have non-Hindus?" Justice Kumar asked. "As far as religious endowments of Hindus is concerned, no one else (non-Hindus) is a part. Why or why not (the same treatment for) waqf property? Allow the court to decide it," the CJI remarked..Among other submissions, the SG also said that registration of waqf property was mandatory even under the previous law of 1995."Registration of Waqf was always mandatorily required. Even waqf by user had to go through waqf by registration. In 1995 Act also, it is compulsory. Mr Sibal says Muttawali will go to jail. He is going to jail since 1995 if registration is not done," the SG said..Does Tirupati board have non Hindus?Supreme Court.The Bench persisted with its questions on registration and denotification of waqf by user. "If waqf by user already established and registered, will it be declared void as per 2025 Act?" the CJI asked. "If registered, no. It will not be void ...What stopped them from registering it?" the SG said. The Court questioned if the law should impose a stay on the waqf character of a property merely because it is "in dispute" or has not been registered. Registration requirements in law are relatively recent, it observed. "It says 'in dispute.' What does it mean? It does not say before the court, just 'in dispute. Then issue is with government property. Before British came, we did not have any registration or Transfer of Property Act. Many masjids will be in 14th or 15th century," the CJI said. The SG replied that registration has been mandatory since 1925.The Bench was not impressed."How will you register such waqfs by user? What documents will they have? ... It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have gone through privy council judgments also. Waqf by user is recognised. If you undo it, then it will be a problem. Legislature cannot declare a judgment, order or decree as void. You can only take the basis," the CJI remarked."There is a large section of Muslims who do not want to be governed by Waqf Act. They can even create a trust now," the SG said. .The Court proceeded to question the government about the powers of Collector."The moment collector starts deciding it, it stops being waqf! Is it fair?" the Bench demanded. "Use is not stopped. Only status as waqf is stopped," the SG replied."Where will the rent be paid then? Why have this provision then?" the CJI asked..Then this bench also cannot hear the case!SG Tushar Mehta .As regards, the composition of the Waqf Council, the SG said it is only a consultative body."It is argued that there is usurpation by Central government. This was so in 1995 and even in 2013, the Central Waqf Council was established. This is only a consultative advisory body. This is only about how boards have to perform etc," the SG stated."Mr. Mehta are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards. Say it openly. As per the Act, eight members are Muslims. Two judges may not be Muslims! Then the rest are non-Muslims," the CJI said."Then this bench also cannot hear the case," the SG replied, adverting to the fact that all the judges on the Bench were Hindus."What! When we sit over here. We lose our religion. For us both sides are the same. How can you compare it with the judges? Why not have non-Hindus also in the advisory board of Hindu endowments then," the CJI retorted..When we sit over here. We lose our religion. For us both sides are the same.Supreme Court."Are you ready to make a statement before the court that maximum of two only, apart from the two ex-officio members, will be non-Muslims," the CJI asked. "I can put it on affidavit," the SG assured.In this regard, the SG also sought to rely on the government's responses to the joint parliamentary committee. However, the Court said that the same will not be useful since the Amendment Act does not expressly provide that there will not be more than two non-Muslims on the Council."We have to go by the Section. Rest of the members can be non-Muslim. Proviso does not say so that only two (can be ex-officio members). You cannot read JPC minutes into a section," Justice Kumar said."I will file an affidavit then," the SG assured..The Court further highlighted the issue regarding denotification of waqfs."When a public trust is declared to be a waqf 100 or 200 years ago.. suddenly you say, it is being taken over by the waqf board and declared otherwise," the CJI said."That is not correct. What it means is that if you have a waqf and can make a trust instead.. you can do it.. this is an enabling provision," the SG responded. "You cannot rewrite the past," the CJI stated..Notably, the CJI also asked whether the matter should be sent to one of the High Courts."First option is for us (Supreme Court) to hear it. Or send it to common High Court or take pending petitions from High Court also here and decide it," he suggested.The government has requested that the Supreme Court hear it."Please hear it. We will file reply in two weeks and have day to day hearing," the SG said.Before wrapping up its hearing today, the Court said it is seriously concerned about some of the provisions and will consider passing an interim order on some of the provisions..The Court also expressed concerns over the violence that broke out over the law."One thing is very disturbing is the violence that is taking place. If the matter is pending here it should not happen," the Court said in apparent reference to the violence in West Bengal's Murshidabad."Yes, they think they can pressurise the system by this," the SG said. "Who is pressuring who we don't know," Sibal replied. "There are positive points in the bill, do highlight that," the CJI said as the hearing drew to a close.The case will be heard again at 2 PM tomorrow..[Read Live Coverage]