On May 22, 2025, the Supreme Court reserved its interim order on petitions challenging the Waqf (Amendment) Act 2025. The case was heard by a bench comprising Chief Justice of India BR Gavai and Justice AG Masih over three days.
"Registration of Waqf properties was required since 1923," remarked CJI Gavai during the hearing, emphasizing that earlier laws, including those from 1954, required disclosure and registration.
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Solicitor General Tushar Mehta defended Section 3E, which bans creation of Waqf on Scheduled Areas, stating,
"This is to protect tribal lands as Waqf creation is irreversible. Tribals may follow Islam but have their own cultural identity."
He also addressed Section 3C, clarifying that
"It merely suspends the Waqf status during inquiry and enables revenue officers to update records. Title disputes must go to civil court."
Regarding non-Muslims creating Waqf, Mehta noted this right was only introduced in the 2013 amendment and could be misused, adding,
"If a Hindu wants to contribute, they can donate to a Waqf or form a trust."
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He also justified the 5-year Islam practice requirement for Waqf creation, linking it to the Muslim Personal Law, and argued the amendments were not unconstitutional to justify an interim stay.
Senior advocates for States like Rajasthan, Haryana, and Odisha supported the Centre. Advocate Rakesh Dwivedi argued that ‘Waqf by user’ was based on a single Privy Council sentence and should not be compared with Hindu endowment laws.
Senior Advocate Kapil Sibal contested Section 3C, stating,
"Waqf property status is affected until government inquiry is done, which changes its legal character. That’s not permissible."
He said states failed to register waqfs despite laws since 1954, and now communities are being penalized.
"In Delhi, only two waqfs are registered. In Telangana and J&K, none. The failure is of State Governments, not the community."
Sibal further argued that Section 3D, which removes ‘Waqf by user’, was not part of the JPC-approved draft.
Dr AM Singhvi criticized the requirement of 5 years of Islamic practice, calling it
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"A reverse burden of proof not required in any other religion."
He also flagged a "vicious circle" created by Sections 36(1), 36(7A), and 36(10), where waqf-by-user properties cannot be registered and if the Collector claims it’s government land, registration is blocked.
Senior Advocate Rajeev Dhavan said that Waqf and charity are integral to Islam and
"No outside authority has the right to declare it non-essential."
Huzefa Ahmadi targeted Section 3E, saying it unfairly restricts Muslims from Scheduled Tribes.
"If the goal was to protect tribals, this provision fails. It singles out Muslim tribals."
AM Dhar highlighted that the concept of Waqf comes from the Quran and has deep religious roots.
CJI Gavai emphasized that the idea of registration isn't new, stating:
"From 1954 onwards, registration has been mandated. If it hasn’t happened, it’s the States' fault."
The bench also proposed interim relief — waqf properties declared by courts should not be denotified and all board members should be Muslim, except ex-officio ones. No appointments to boards should be made until further orders.
Background and Wider Impact
The Waqf (Amendment) Act 2025 has been challenged by several political leaders and organizations including AIMIM MP Asaduddin Owaisi, Jamiat Ulema-i-Hind, Indian Union Muslim League, and MPs from TMC, RJD, CPI, SP, and DMK.
Intervention in support of the Act has come from BJP-led States like Assam, Rajasthan, Chhattisgarh, Haryana, Uttarakhand, and Maharashtra, along with Kerala.
The major provisions under challenge include:
- Removal of ‘Waqf by user’
- Ban on non-Muslims creating Waqf
- 5-year Islamic practice requirement
- Inclusion of non-Muslims in Waqf Boards
- Limiting women members
- Application of Limitation Act
- Impact on ASI-protected monuments
The Court's final decision is awaited as it weighs the constitutionality of these provisions.
Case Details: IN RE THE WAQF (AMENDMENT) ACT, 2025 (1)|W.P.(C) No. 276/2025 and connected matters
