Constitutionality of Waqf Amendment Act | Day 1: “Many Muslims want private charity, not Waqf Board,“ says Union

Sibal: Many provisions of the Amendment Act violate Article 26

“Through a parliamentary legislation what is sought to be done is to intervene in an essential and integral part of a faith,” Sibal said, opening the arguments for the petitioners. He contended that the 2025 Act violated Article 26, which guarantees religious denominations the right to manage their own affairs in matters of religion, including charitable activities and running institutions.

He submitted that the redefinition of ‘waqf’ under Section 3(r) of the 2025 Act, which requires a person to have practised Islam for five years to create a waqf is an arbitrary limitation and a violation of religious autonomy. “If I am born Muslim, why should I have to prove that? My personal law will apply,” he said. He emphasised that Islamic inheritance laws operate posthumously and must remain untouched by state intervention.​ CJI Khanna interjected. He pointed out that “Article 26 is universal and it is secular in the fashion that it applies to all.” 

Sibal also argued that Section 3C of the 2025 Act was “per se unconstitutional” as it empowers a government officer, typically a revenue officer such as a Collector, to declare a property as government property, thereby removing its waqf status, without any time limit or fair adjudication process. The provision, Sibal said, positioned the government officers as “judges in their own cause.” 

He also raised concerns about the impact of the Act on monuments already declared as “protected”. The Chief responded that, “All ancient monuments, including Jama Masjid, will remain protected.”

Sibal: The Amendment Act is a parliamentary usurpation

Sibal criticised Sections 9 and 14 of the 2025 Act, which prescribe a new composition of the Central Waqf Council and the State Waqf Boards. Sibal argued that they allow for non-Muslim nominees and thereby reduce Muslim representation in the Board’s decision-making. In the 1995 Act, all nominees were Muslims. 

Sibal highlighted that the central law regarding Sikh Gurudwaras and many state laws on Hindu religious endowments do not permit the inclusion of persons of other faiths in the respective Boards. “It is a parliamentary usurpation of the faith of 200 million persons,” he said. 

Highlighting that after the amendment, the CEO of the Board need not be a Muslim, he argued that the new law allows a “complete takeover of the Boards through nomination.” Sibal also took exception to the application of the Limitation Act to the Waqf Act. CJI Khanna, however, said that the government can always impose limitations. “We cannot say imposing of limitation is wrong by the government.”

Sibal: “The waqf by user is abolished”

Sibal also challenged the abolition of the concept of waqf by user in the 2025 Act. Waqf by user is a long-term usage of a property for religious or charitable purposes, even without a formal written deed. He stressed that this form of waqf had been recognised in the Ayodhya (Ram Janmabhoomi) judgement and that requiring documentation for waqf created centuries ago was impractical and an infringement on religious practice. “Many of these waqfs were created 100 years ago. Where do you find the records? They will now ask for a waqf deed for a 300-year-old property… that’s the problem,” he stated.

Senior Advocate Abhishek Manu Singhvi echoed Sibal’s concerns. He argued that the deletion of Section 2(r)(i) of the 1995 Act, which previously recognised waqf by user, was unconstitutional as half of the eight lakh waqf properties are waqf by users. 

Other counsel on the petitioners’ side made short submissions. Senior Advocate Rajeev Dhavan emphasised that “Religion, particularly charity, is an essential and integral part of Islam”. Senior Advocate Huzefa Ahmadi highlighted that “an element of vagueness” is inherent in the Act.​ Advocate Nizam Pasha stated that in the 2025 Act, a law is being imposed against the essential practices of Islam. Senior Advocates Sanjay Hegde, C.U. Singh, Rajeev Shakdher and P Wilson also made supporting arguments. 

Mehta: Registration of waqf mandatory since 1923

Solicitor General Tushar Mehta defended the legislative intent behind the 2025 Act. He emphasised the extensive deliberations undertaken by a Joint Parliamentary Committee over 38 sittings, which looked at 29 lakh suggestions, examined 98.2 lakh memorandums and consulted with stakeholders across the country. He argued that the 2025 Act maintained continuity with the 1995 Act, particularly in mandating waqf registration. 

On the contentious issue of waqf by user, Mehta stated that properties “registered before the 2025 Act, will remain as waqf properties.” However, for those not registered, a claim must be established if it is currently under dispute. 

CJI Khanna sought clarity about the “dispute” conditions. “Before the Britishers came, we did not have a land registration law or Transfer of Property Act. Many of the masjids were created in the 14th or 15th centuries. To require them to produce a registered deed is impossible. Most of the cases, say Jama Masjid Delhi, the waqf will be waqf by user,” CJI said. Mehta responded that nothing prevented them from registering. He later added that registration was mandatory since the first Waqf Act in 1923.

CJI Khanna then questioned the “fairness” of the nuance of the provision, which says that the property won’t be a waqf “the moment the Collector starts investigation” if it is government land. Mehta clarified that the use as a waqf is not stopped, and the provision only says that it won’t get the benefits as a waqf in the meantime.

The CJI further questioned who should be paid for waqf properties that generate rent. Mehta simply reiterated that “the identity as a waqf will be suspended, not the use of the property.” He further added that judicial review is not taken away by the 2025 Act, “Waqf tribunal is a judicial body and has a judge. Every order passed by the Act is subject to review by the tribunal.”

Mehta: The Amendment Act increases inclusivity

CJI Khanna questioned whether the 2025 Act undoes the recognition of waqf by user properties. “Waqf by user has been accepted. If you de-notify waqf by user properties, there will be an issue,” he said, pointing out that such waqfs are often undocumented. In response, Mehta said, “Many Muslims do not want to be under the Waqf Board. They want to have private charity.”

On the composition of the Central Waqf Council, the CJI noted that only eight out of 22 members are required to be Muslims and remarked, “This Board manages religious affairs of Muslims. Why not have them in the majority?” Mehta responded that the Council is now more representative and inclusive of different Muslim sects. He mentioned that “Bohras and other sects” are also now included in the restructured body. He also highlighted that the Council now has two women on it. 

Addressing concerns about the inclusion of non-Muslims in Waqf Boards, Mehta clarified that apart from two ex-officio members, only two non-Muslims will be part of the Waqf Boards. He argued that such inclusion does not infringe upon religious rights.​

He further countered the allegation of “usurpation by central government”, and said, “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.” The CJI pointedly asked, “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 Bench: “You cannot rewrite the past”

Chief Justice Khanna acknowledged the potential ramifications of the Act on established waqf properties. “You cannot rewrite the past,” he asserted, emphasising the need to respect historical endowments.​ 

At one point, Justice Viswanathan particularly highlighted the Hindu Charitable Endowments Act and explained how Hindus govern it. To this, Mehta replied that “the statutory supervision is by a committee which may or may not have Muslims.” When Justice Kumar further asked whether the Tirupati temple board has non-Hindus, CJI Khanna added, “As per religious endowments of Hindus, no one else (implying non-Hindus) is a part. Why or why not (the same for) waqf property? Allow the Court to decide it.”

In response to the government’s assurance on the composition of Waqf Boards, Chief Justice Khanna again drew a parallel with Hindu religious endowments, questioning the consistency of such inclusivity. “Why not have non-Hindus also in the advisory board of Hindu endowments, then?” he asked. 

Responding to Mehta’s suggestion that the petitioners’ argument implied judges should not hear religious matters, the CJI said: “When we are sitting here to adjudicate, we lose our religion. We are secular. We are talking about a Board which is managing religious affairs.”

Bench contemplates interim relief measures

The Court suggested the following interim measures, but upon the Union’s insistence, did not pass them today: 

1. Whatever properties are declared by the Court to be waqf, will not be denotified or treated as non-waqf, whether it is waqf by user or not.
2. Collectors can continue with proceedings related to waqf properties, but the provisions in question will not be given effect during this period.​
3. Ex-officio members can be appointed, but all other members of Waqf Boards and Councils must be Muslims.​

The case will be heard again at 2pm on 17 April.