On 22th May, the Supreme Court resumed the hearing of multiple petitions challenging the constitutional validity of the Waqf Amendment Act 2025. The law makes changes to the Waqf Act of 1995, which deals with the management of Waqf properties (properties dedicated for religious or charitable purposes under Islamic law).
The petitioners argue that this law discriminates against the Muslim community and interferes with their religious freedom. On the contrary, the central government contends that this amendment has been brought to prevent the misuse of Waqf provisions and to end encroachment on private and government properties. In the hearing, the bench of Chief Justice (CJI) B.R. Gavai and Justice A.G. Masih heard the arguments of the petitioners, the central government and other parties.
Arguments given by the petitioners
Durimg the hearing on 20th May 2025, Solicitor General Tushar Mehta argued on behalf of the central government, while senior advocates Kapil Sibal, Rajiv Dhawan, A.M. Singhvi, C.U. Singh and Huzefa Ahmadi argued on behalf of the petitioners. The court had first scheduled the hearing on three issues, but the petitioners also raised several other points.
Kapil Sibal’s arguments
- Kapil Sibal claimed, “This law has been brought to protect Waqf, but its real purpose is to usurp Waqf properties. This law has been made in such a way that Waqf property can be snatched without any process. A government official makes a decision, and the property immediately ceases to be Waqf. Anyone can raise a dispute.”
On the abolition of Waqf-by-User (Waqf property created by long-term use), he said, “The concept of Waqf-by-User, which was recognised in the Babri Masjid case, has been abolished. There was a provision for registration in the 1925 law, but if registration is not done, the property ceases to be a Waqf; this is new.”
On ancient monuments, Sibal argued, “If a property is declared an ancient monument, it is no longer a Waqf. This takes away religious rights. This violates Article 25 of the Constitution.”
On Section 3(c), Sibal said, “Under Section 3(c), the property ceases to be a wakf without any investigation. There is no judicial process. The person who created the wakf has to go to court, and by then, the status of the property changes. This is a violation of Articles 25, 26 and 27.”
On the condition of practising Islam for 5 years, Sibal quipped, “I have to prove that I am a Muslim for 5 years. Who will decide that I am a Muslim? If I want to create a waqf before I die, do I have to wait for 5 years? This in itself is unconstitutional.”
On the inclusion of non-Muslims in the Wakf Board, Sibal said, “Earlier, all the Waqf Board members were Muslims; now 7 out of 12 can be non-Muslims. This is interference in religious matters and violates Articles 25 and 26.” Sibal questioned Sections 3(d) and 3(e), “These sections were not in the original bill and were not discussed in the JPC. This is procedurally wrong.”
Arguments of Rajiv Dhawan
Rajiv Dhawan said, “This law is against secularism. The definition of Waqf was not changed even during the British period. What was the need to abolish the concept of Waqf on such a large scale? This is a threat to every religion.” He added, “This law violates Articles 25, 26 and 29. Article 29 gives the right to protect culture. Taking it away will destroy the secular structure.”
Arguments put forth by Abhishek Manu Singhvi
Presenting his argument in the Supreme Court, Abhishek Manu Singhvi said, “This law forces Muslims to make repeated rounds of offices. This is a recipe for creating terror.”
On Waqf-by-User, he said, “Waqf-by-User are mostly unregistered. Abolishing it and the condition of proving practising Islam for 5 years is only for Muslims. This is a violation of Article 15.”
On Section 3(D), Singhvi argued, “This section makes the Ancient Monuments Act prevail over the Wakf Act, thereby affecting even the monuments protected under the Places of Worship Act, 1991.”
Refuting the government’s claim, he said, “The government says that there was a 116% increase in Waqf properties after 2013. This is not an increase but the result of digitisation.”
In this case, lawyer Chander Uday Singh argued, “Earlier, the punishment for non-registration was only a fine on the Mutawalli. Now in the 2025 law, the entire Waqf property is abolished.”
Advocate Huzefa Ahmadi’s arguments
- “The impact of Section 3(D) is very serious. It affects even old mosques. It must be stopped immediately,” Ahmadi said.
- On the 5-year condition, he asked, “Will anyone ask me if I pray 5 times a day or drink alcohol? There is no clear principle of practicing Islam.”
- On Sections 107 and 108, Ahmadi said, “These sections retrospectively abolish old waqf properties. This is a violation of Article 15.”
Solicitor General Tushar Mehta’s arguments while representing Centre
- SG Tushar Mehta said , “The court had fixed the hearing on three issues, but the petitioners are raising many other points. I request that the hearing be limited to these three issues.”
- “This law is to prevent misuse of Waqf properties and to end encroachment on private and government properties,” he added, adding that Waqf is not a necessary condition for practising Islam.
- Mehta said, “On April 17, the government had assured that some major provisions would not be implemented. Therefore, there is no need to completely stop the law.”
Comments made by the Supreme Court
After hearing the arguments of both sides, CJI Gavai said, “There needs to be very strong grounds to consider a law as unconstitutional. There is a presumption of constitutionality of the law.”
Asked whether registration was compulsory or voluntary in the old law, Sibal replied, “The 1923 law had the word ‘shall’ but there was no punishment for non-registration except removal of the mutawalli.”
On ancient monuments, the CJI said, “People pray at the Khajuraho temple, even though it is an ancient monument. Does that take away the right to pray?”
Centre presents detailed arguments
On Wednesday (21st May), the Supreme Court began the hearing in this case at 12:15 pm. The Central Government presented its arguments in detail. In which Solicitor General Tushar Mehta presented arguments on behalf of the Central Government.
Mehta said, “This law is to end the problem of misuse of Waqf properties, which has been going on since 1923. The JPC heard 96 lakh representations in 36 meetings and after extensive discussions, this law was passed.”
On Section 3(c), he said, “Under Section 3(c), the revenue officer only corrects the revenue records. It is not a final decision. The Waqif can appeal to the tribunal, the high court or the Supreme Court.”
“The Section 3(c) decision is just a paper entry. The government will have to file a title suit to take over ownership,” Mehta added.
On Waqf-by-User, Mehta said, “The purpose of abolishing Waqf-by-User is to ensure that no property becomes Waqf without registration. This will stop encroachment on private and government properties.”
On religious rights, Mehta argued, “ Waqf is not an essential part of Islam . Charity exists in every religion, but it is not considered an essential religious practice.”
Defending the inclusion of non-Muslims on the board, he said, “It is for inclusiveness. Waqf properties, like schools or orphanages, can be for non-Muslims as well.”
On the 5-year condition, Mehta said, “In Sharia law, one has to prove oneself to be a Muslim even for marriage, divorce or will. Only a time limit of 5 years has been set in this law.”
Mehta refuted Sibal’s argument on registration, “It is wrong to say there was no registration in 1923. The Bengal Wakf Act also had wakf-by-user and registration was a must.”
Arguments of the petitioners
- “Abolishing waqf-by-user and invalidating unregistered waqfs is a violation of religious and property rights,” said counsel for one of the petitioners.
- “Sections 3(d) and 3(e) were inserted without JPC discussion, which is procedurally wrong,” Sibal reiterated.
Important observations of the court
- The CJI asked Mehta, “Will the government decide its own claim under Section 3(c)?” Mehta replied, “Revenue officers only correct the records, not decide the title.”
- “Possession of the property cannot be taken under Section 3(c) unless the procedure under Section 83 is completed,” the court said.
- On Sibal’s argument, CJI said, “Mehta is technically correct that there was a provision for registration even in 1923.”
Key arguments in favour and against the Waqf Amendment Act 2025
On Thursday (22nd May) the hearing began at 12:06 am. On this day, the central government and other parties concluded their arguments, and the court made some important comments.
Centre’s arguments presented by Solicitor General Tushar Mehta
Mehta began his argument by saying, “Since 1923, there were complaints of misuse of Wakf properties. Another law came in 1954. A new Wakf Act was enacted in 1995. But in 2013, Section 40 gave unlimited powers to the Wakf Board, which led to increased encroachment on private and government properties.”
He said, “There were lakhs of complaints that villages were being declared as Wakf properties. The Wakf Board was usurping private properties. This law is to stop that misuse.”
On Section 3(c), Mehta reiterated, “It is only a procedure to correct the revenue records. If there is a dispute, the collector conducts an inquiry. It is not the final decision. The Waqif can approach the tribunal or court.”
On Waqf-by-User, he said, “The concept of Waqf-by-User was there in the old law as well, but it was necessary to make it more stringent so that properties without documentation do not become Waqf.”
On the inclusion of non-Muslims in the board, Mehta said, “The work of the Waqf Board is not religious but secular. Waqf properties like schools, hospitals are for all. The inclusion of non-Muslims is for inclusiveness.”
Defending the 5-year condition, he said, “This is according to Sharia law. To create a waqf, a person must be a Muslim, and the 5-year condition has been put in place to ensure this.”
Mehta added, “This law has been made after 36 meetings of the JPC and 96 lakh representations. This is a well-thought-out step.”
Arguments presented by petitioners challenging Waqf Act 2025
Senior advocate Harish Salve (appearing for the petitioner challenging the 1995 Waqf Act) said, “Many provisions of the 1995 Waqf Act are also in the 2025 amendment. The Supreme Court should consider both the laws together. There is no need to bring the High Court petitions here.” He added, “If 100-year-old Waqf properties are no longer Waqf, then it is a serious problem.”
K. Parameshwara (appearing for the petitioner) said, “The written arguments are like a complete petition. We should be allowed to argue all the issues.” On Section 3(c), he said, “This section changes the status of the property without any judicial process. This is wrong.”
Dr G. Mohan Gopal (on behalf of Sree Narayana Manava Dharmam Trust) said, “All the five main petitions are from Muslim parties. This creates an impression that the case is polarised. Non-Muslim parties should also be heard.” He added, “This law is not just against Muslims, but is a threat to all religions.”
Senior advocate Guru Krishnakumar (Waqf Board) said, “Section 32 says, ‘The Waqf Board shall act in accordance with the wishes of the Waqfkarta/Waqif’. Sections 96 and 97 also discuss this, which deal with directions of the state Waqf Board and the Central government.”
Senior advocate Gopal Sankaranarayanan said, “There are 280 ASI monuments under waqf claim. Section 25(2)(a) allows states to legislate on economic and political issues.” He said, “Judicial review is being considered by a nine-judge bench. The Shirur Mutt case is relevant to the interim order.”
Solicitor General Tushar Mehta said, “Earlier the CEO (Chief Executive Officer) was supposed to be a Muslim, but now it is an ‘Enabling Provision’. Section 38 says, ‘The Executive Officer should be a Muslim.'” He said, “The Waqf Board is a ‘State’ under Article 12 of the Constitution. There is no ‘Community Restriction’ in it.”
Supreme Court’s observations
After hearing arguments of both sides, CJI Gavai said, “We had earlier said that petitions challenging the 1995 Waqf Act will not be heard in this case. We will only focus on the 2025 amendment.”
On Section 3(c), the CJI questioned, “Will the collector decide his own claim?” Mehta replied, “This is a fallacious and incorrect argument. The collector only corrects the record, not decides ownership.”
On Waqf-by-User, the court said, “If a monument like Jama Masjid has been recognised under Waqf-by-User, then how can it be abolished?”
On the inclusion of non-Muslims in the board, the court asked, “Can Muslims be included in a Hindu religious trust?” Mehta replied, “This is a question of inclusiveness. The work of the Waqf Board is secular.”
CJI interrupted Sibal’s argument, “You say that offerings are not made in mosques. I have been to the dargah and I have seen that offerings are made there too.”
In the three days of hearing, the petitioners called it an attack on religious freedom and property rights, while the government called it a step to improve Waqf management. The court has not yet given any interim order and the next hearing will be on the 5th of June 2025.
