AS THE SUPREME COURT GEARS UP to continue hearing the petitions challenging the constitutionality of the Waqf (Amendment) Act, 2025, on May 20, here is a look at the proceedings so far.
The matter was first taken up on April 16 by a Division Bench led by the then Chief Justice of India, Sanjiv Khanna and comprised of Justices Sanjay Kumar and K. V. Vishwanathan.
The matter was heard for two consecutive days before being adjourned for May 5 at the instance of the Solicitor General, Tushar Mehta, as he prayed for a week to file an affidavit on behalf of the Union government, which he was directed to file by April 24.
The affidavit of the Union and the rejoinders, thereto, were filed by May 4. However, given his impending retirement on May 13, CJI Khanna deferred the batch of petitions to a new bench led by his successor, the then CJI-designate, B. R. Gavai. CJI Khanna also expressed his unwillingness to pass an interim order as the Union reiterated its commitment that no waqf properties would be denotified, and no appointments would be made to waqf boards or councils until the next hearing.
Scope of hearing was limited on May 15
The matter was last taken up on May 15 by the Bench led by CJI B. R. Gavai, with Justice A. G. Masih. The scope of the hearing was limited to whether or not an interim relief was necessary, including a stay on the specific provisions of the Act, such as the appointment of non-Muslim in the Waqf Boards and the Waqf Council, or the denotification of waqf-by-user properties.
Senior Advocate Kapil Sibal, appearing for Jamiat Ulama-e-Hind, filed consolidated written submissions for the petitioners, whereas the Solicitor General was directed to submit the Centre’s response by May 19.
Advocate Vishnu Shankar Jain, representing a Hindu party, attempted to challenge both the 1995 Act and the 2025 Amendment, arguing that they were discriminatory. The Bench, however, refused to entertain the challenges to the 1995 Act, stating that the focus shall be directed to the 2025 Act. Given the number of counsels involved, the Court emphasised maintaining order during arguments.
Advocate Dr G. Mohan Gopal, appearing for an intervener, Shree Narayan Manava Dharam Trust, argued that the lead petitions being all Muslim individuals or organisations gives the impression that only the Muslims are aggrieved by the Act. He stated that Hindu individuals and organisations, such as the one he was appearing for, were equally aggrieved and stressed that the Petitioners are not all Muslims; rather, it is a secular united front, and the proceedings of the Court should reflect that. On this, the Bench pointed out that the cause title of the case is no longer in the name of any individual or organisation and is now titled, ‘In Re: Waqf (Amendment) Act 2025’.
The petitioners and the Union government have since filed their respective written arguments, and the petitions, including the interventions, both challenging and supporting the Amendment Act, will be heard today.
What contentions have the Petitioners raised?
The petitioners have raised contentions against several provisions of the Amendment Act, arguing, inter alia, that the Act is arbitrary and infringes upon the religious autonomy of Muslims. They say that the provisions, such as the inclusion of non-Muslims in the waqf bodies, enhanced government control over the declaration of the status of waqf properties, the requirement of being a practising Muslim for at least 5 years, the omission of waqf-by-user, and other such provisions, are unconstitutional and violative of the fundamental rights of the petitioners, including the right to religion, to manage and maintain one’s religious institutions and the property rights.
However, the petitioners’ arguments will be broadly divided into two parts today. The first part will deal with the specific provisions of the Act that are “per se violative of Articles 14, 15, 25 and 26 and thus unconstitutional.” The second part will address the Union government’s claim based on the WAMSI data of the 116 per cent increase in the auqaf area between 2013 and 2024, which the petitioners argue is misconceived.
The contentious provisions of the Amendment Act include –
i) Section 3(r), which defines waqf. The petitions argue that the part of the definition which states that a waqf can only be created by “any person showing or demonstrating that he is practising Islam for at least five years” is unconstitutional because neither can a criterion be adopted for determining if a person is practising Islam for at least five years, nor has any procedure been prescribed in the Act for demonstrating or proving this fact. The petitioners argue that this provision imposes restrictions without any rational basis or clarity.
ii) Section 3B(2)(b) requires the registration of details of the creator of a waqf, including his name and address. The Petitioners argue that this provision is unconstitutional because every registered waqf does not necessarily have the details of the name and address of the creator, mode, and date of creation.
iii) Furthermore, sub-clause (b) uses the word “shall”, making it mandatory to provide such details regardless of their availability. This provision contrasts with sub-clause (c), which makes submitting the waqf deed conditional upon availability. The petitioners state that the absence of a similar exception in sub-clause (b) creates an unreasonable burden on existing waqfs.
iv) Section 3C, titled ‘Wrongful Declaration of Waqf’, is argued to be unconstitutional because it provides for an inquiry by the Designated Officer (DO) – a government officer – to ascertain whether a declared waqf property is government property. The proviso to the section states that such a disputed property shall not be treated as waqf property until the DO has submitted his report in favour of the waqf.
The expansive nature of the definitions given to “government organisation” under Section 3(fa) and “government property” under 3(fb) makes the provision contained in Section 3C especially problematic. It encompasses all movable or immovable properties belonging to any government organisation, including municipalities, panchayats, subordinate offices, autonomous bodies and organisations owned or controlled by the government.
To top it off, the Act does not prescribe any procedure for such an inquiry. The petitioners argue that the “procedure and observance of principles of natural justice cannot be presumed”, as the Union government has contended in its counter-affidavit.
The phraseology like “if any question arises” and the absence of a limitation period add to petitioners’ apprehensions that these provisions would allow any random person to dispute the status of a waqf property, regardless of motive or merit. The Act also does not prescribe a time frame for the DO to submit his report, meaning that the status of a waqf property would remain suspended indefinitely.
Furthermore, sub-sections (3) and (4) of Section 3C provide for a change in records based on the DO’s report, without providing a judicial process where the veracity of the findings of such a report could be challenged. The provision also does not have a rule against bias of the DO, who, being a government officer, would essentially be a judge in his own cause.
Therefore, what flows is that the Government can unilaterally declare a property as non-waqf, without having to invoke the judicial process provided under Section 83(2) of the Act, in contrast, a person, mutawalli or otherwise, will have to undergo this adjudicatory process while asserting the status of a waqf property. The Petitioners thus argue that the remedial framework of the Act is asymmetrical in application.
v) The petitioners argue that Section 3(r)(i) of the Amendment Act is also unconstitutional since it invalidates the concept of waqf-by-user, contrary to the judgment of the Constitutional Bench in M. Siddiq v. Mahant Suresh Das (2019) (the Ram Janmabhoomi judgment). The judgment recognised religious endowments based on long-standing religious use –
"1134. Our jurisprudence recognises the principle of waqf-by-user, even absent an express deed of dedication or declaration. Whether or not properties are waqf property by long use is a matter of evidence. The test is whether the property has been used for public religious worship by those professing the Islamic faith.”
Moreover, the petitioners state that the proviso obliterates the status of a registered waqf-by-user property if it is “in dispute or is a Government Property.” They argue that the lack of a definition for “Dispute”, along with the expansive definition of “government property” under Section 3(fb), makes the provision vague, sweeping and violative of Article 14 of the Constitution.
vi) The Petitioners also argue that the mandatory requirement under Section 3B(2)(b) of the creator’s name and address, and the mode and date of its creation, effectively invalidates the status of waqf-by-user, which by definition does not have any of these. Also, not furnishing these details would attract a penalty under Section 61(1A)(v), including imprisonment of up to 6 months and a fine of 20,000 to 1 lakh. The Petitioners thus argue that the contention of the Union that no documentary proof is required to be submitted is incorrect.
vii) The Petitioners argue that Section 3D of the Amendment Act, declaring all notifications made by the Waqf Acts to be void if a property is a protected monument under the Ancient Monuments Preservation Act (1904) or the Ancient Monuments and Archaeological Sites and Remains Act (1954), is unconstitutional as the purpose of the 1904 and 1954 Acts is preservation, not extinguishment or alteration of title. They also argue that the declaration of a property as an ancient monument cannot extinguish its identity or character.
Furthermore, the Petitioners argue that Articles 25 and 26 guarantee the protection of religious practices and institutions, and they can coexist with statutes meant for preserving the heritage.
viii) The Petitioners argue that Section 3E is unconstitutional since it disqualifies individuals or groups belonging to the Scheduled Tribes from establishing waqfs. They call this classification unreasonable as it presumes that a member of a Scheduled Tribe cannot be Muslim, which is factually incorrect.
ix) The Petitioners have also raised contentions against Sections 9 and 14, which provide for the inclusion of non-Muslim members in the administration of waqf bodies, and Section 23, read with Section 32, which allows a non-Muslim to be the CEO of one of these bodies. The Petitioners argue that these provisions are unconstitutional because they interfere with a denomination’s right to manage its own affairs.
They state that the Union’s classification of the waqf as “secular” and other religious endowments as purely religious is illusory and without a rational basis, as other Religious Endowment Acts also contemplate secular functions, such as Section 2(28) of the Andhra Pradesh Charitable and Hindu Religious Endowments Act, 1987, and the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. However, these Acts still prohibit the inclusion of members who do not belong to the relevant faith. (Section 96 of the Andhra Pradesh Act, Section 10 of the Tamil Nadu Act, and Section 3 of the Uttar Pradesh Kashi Vishwanath Temple Act, 1983).
Also, under the unamended Section 14, the number of elected members in the board was more than the nominated members. However, under the amended Section 14, all the members are either nominated or appointed ex officio.
x) The Petitioners also argue against the omission of Section 40 from the principal Act, as it impedes the right of the Board to administer the Waqf Properties, allows the Collector to decide the status of the Waqf Properties, and takes away the comprehensive procedure, which was in line with the principles of natural justice.
xi) Further, the deletion of Section 107 allows the Limitation Act to become applicable to any claim or interest concerning an immovable property in a waqf. The Petitioners argue that this deletion is unconstitutional because the provision uses the words “any proceedings”, rather than “any proceedings instituted after such commencement”. This would mean that the existing proceedings that were initiated after a considerable period will stand abetted by the operation of the Amendment Act.
Traditionally, the Limitation Act does not apply to proceedings for reclaiming the properties covered under the Religious Endowment Acts, including the Hindu Endowment Acts. (Section 109 of the Tamil Nadu Hindu and Charitable Endowments Act 1959 and Section 143 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987).
xii) The Petitioners also argue against the omission of Section 108 of the Act, which provided that even if a waqf property is declared evacuee property, it would continue to vest in the Board. Such removal takes away any vested rights and the overriding effect granted by Section 108A, inserted by the 2013 Amendment.
How the petitioners responded to the 116 percent increase in auqaf area claim
On the claim of a 116 percent increase in the auqaf area between 2013 and 2024, the Petitioners submit that the WAMSI data cannot reflect the waqfs as they existed in 2013 because –
The WAMSI Portal was introduced in 2009
It was operationalised only by 2011, whereafter the details of the waqfs were to be uploaded by the State Waqf Boards.
The portal was still nascent in 2013, and the digitisation was incomplete. To substantiate this claim, the petitioners have cited a 2013 WAMSI Report, showing that only the pre-digitisation work had commenced by then, and only two States and two Union Territories had completed digitisation.
As per an answer dated July 18, 2019, from the Ministry of Minority Affairs to an unstarred question, as of July 2019, the digitisation was at 85%, whereas the rest was still pending.
The Petitioners argue that the data from the WAMSI Portal does not indicate how many waqfs existed in 2013. It also does not prove when a particular waqf came into existence or was registered. They claim that the figures cited by the Union government are “absurd and misleading”.
The data only implies that the details of the existing waqfs were either uploaded or updated on the WAMSI Portal post 2013. Therefore, without baseline data, the contention that the auqaf area has exponentially increased between 2013 and 2024 cannot be sustained.
As directed by the Court, the Union Government filed a brief note in response to the Petitioners’ arguments yesterday, on May 19. How these arguments fare before the Court will be revealed today.
