New Delhi: The Supreme Court on Wednesday asked the BJP-led central government whether it would allow Muslims to be part of Hindu trusts, as it began hearing a batch of pleas against the constitutional validity of the Waqf (Amendment) Act, 2025.
A bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan, towards the end of today's hearing, proposed to pass an order that properties declared as Waqf, including 'Waqf By User', would not be denotified, which the centre opposed and sought a hearing for. The Supreme Court will continue hearing the pleas challenging the Waqf (Amendment) Act from 2 pm tomorrow (April 17).
As many as 72 petitions, including those by AIMIM leader Asaduddin Owaisi, All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), Congress MPs Imran Pratapgarhi and Mohammad Jawed, have been filed challenging the validity of the Act.
During today's hearing, the Supreme Court bench asked the Solicitor General Tushar Mehta, appearing for the Centre, how "waqf by user" can be disallowed, as many will not have the requisite documents to get such waqfs registered.
"Waqf by user" refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn't a formal, written declaration of waqf by the owner.
"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 bench said.
Mehta submitted that there was a large section of Muslims who did not want to be governed by the Waqf Act. The bench then asked Mehta, "Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards. Say it openly." The apex court said that when a public trust was declared to be a waqf 100 or 200 years ago, it couldn't suddenly be taken over by the waqf board and declared otherwise.
"You cannot rewrite the past," the bench said. Mehta submitted that a joint parliamentary committee had 38 sittings and examined 98.2 lakh memorandums before Parliament's both houses passed it. CJI Khanna also said one high court could be asked to deal with the pleas.
"There are two aspects we want to ask both sides to address. Firstly, whether we should entertain or relegate it to the High Court? Secondly, point out in brief what you are really urging and wanting to argue?" We are not saying there is any bar on SC in hearing, deciding pleas against the law," the CJI said.
Senior advocate Kapil Sibal, appearing for the petitioners' side, asked how the government could say only those who have practised Islam for the last 5 years can create a waqf.
Sibal questioned, "How can the state decide whether and how I am a Muslim or not and hence, eligible to create Waqf?" The senior advocate said through a parliamentary legislation, "what is sought to be done is to intervene in an essential and integral part of a faith".
CJI Khanna said Article 26 will not bar the enactment of law in this case. "Article 26 is universal and it is secular in the fashion that it applies to all," the CJI said.
Sibal argued that while now there are Waqf Council and boards, earlier, only Muslims used to be part of such boards. "Now even Hindus can be a part...this is a direct usurpation of fundamental rights by parliamentary enactment," Sibal said.
Justice KV Vishwanathan said the wordings of Article 26 "regarding administering etc., cannot be confused with essential religious practices".
The CJI says: "We are told Delhi High Court is made on Waqf land and Oberoi hotel is also made on waqf land." He clarified that he is not saying all waqf by user is wrong, but there is genuine concern. The CJI said all ancient monuments, including the Jama Masjid in Delhi, will remain protected.
Senior A M Singhvi, appearing for one of the petitioners, citing a paragraph in the Ayodhya judgment, said waqf by user is a very old concept.
Solicitor General Tushar Mehta, representing the Centre, said the court was dealing with a legislation and there was a constitution of a Joint Parliamentary Committee and the law was passed by both the Houses of Parliament. Mehta said the Waqf Board is the Charity Commissioner.
"Let's be clear when it comes to Hindu endowments, it's generally Hindus...Is Waqf by user declared void or non-existent? If Waqf by user already established, will it be declared as void or continue to subsist?" the CJI asked Mehta.
"De-notifying waqf by user properties will cause an issue," the CJI said. "It will be very difficult to register (in case of waqf by user)...you have a point that waqf by user is being misused, but genuine waqf by users are (also) there. If you de-notify waqf by user properties, then there will be an issue," he said.
"JPC had 38 sittings, examined 98.2 lakh memorandums before Parliament's both houses passed it," Mehta tells the bench. CJI Khanna says one high court may be asked to deal with all the pleas. To it, senior counsel Abhishek Singhvi says the Waqf Act will have all India ramifications and the pleas should not be referred to a high court.
The SC said ex-officio members can be appointed regardless of faith, but others have to be Muslims.
The Centre recently notified the Waqf (Amendment) Act, 2025, which got the assent of President Droupadi Murmu on April 5 after its passage from Parliament following heated debates in both houses.
The bill was passed in the Rajya Sabha with 128 members voting in favour and 95 opposing it. It was cleared by the Lok Sabha with 288 members supporting it and 232 against it.
As many as 72 petitions, including those by AIMIM leader Asaduddin Owaisi, All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), Congress MPs Imran Pratapgarhi and Mohammad Jawed, have been filed challenging the validity of the Act.
The Centre, on April 8, filed a caveat in the apex court and sought a hearing before any order was passed in the matter. A caveat is filed by a party in the high courts and the apex court to ensure that no orders are passed without hearing it.
