NEW DELHI: The Supreme Court on Tuesday said that there was a presumption of constitutional validity in favour of every statute passed by the Centre and told the petitioners that if they want interim relief, then they must make a very strong and glaring case, while hearing a batch of pleas challenging the Waqf Amendment Act, 2025.
A bench of the top court was hearing a batch of petitions challenging the Waqf (Amendment) Act 2025 on the question of passing interim orders.
During the hearing, the two-judge bench of the apex court, led by Chief Justice of India Bhushan Ramkrishna Gavai and Justice Augustine George Masih orally observed that for a stay of the statute, a strong case has to be shown.
"There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there," CJI Gavai said.
Senior Advocate Kapil Sibal, appearing for one of the petitioners, told the apex court that they have a strong prima facie case and asserted that "irreparable injury will be caused if the provisions are activated."
The arguments were inconclusive on Tuesday and would continue on Wednesday, when the Centre will argue defending the Waqf amendment act.
Pleading for passing appropriate interim orders, Sibal told the apex court that this Act has been framed for purposes of protection of waqfs but in reality, it is designed to capture waqf through a process which is non-judicial.
"The law is designed in such a way that waqf property is taken away without following any process. Private properties are being taken away only because of dispute. The officer above collector is appointed to see the dispute, and meanwhile the property is taken away," he argued before the top court.
Describing the Centre's legislation as unconstitutional, Sibal submitted that a waqf "is an endowment to Allah/God. This dedication cannot be transferred to anybody. Once a waqf always a waqf," he said.
During the hearing, the Centre -- through its senior law officer, the Solicitor General (SG) Tushar Mehta, urged the Supreme Court to confine the hearing on pleas challenging the validity of the Waqf (Amendment) Act for passing interim orders on three issues, including the power to denotify properties declared as “waqf by courts, waqf-by-user or waqf by deed”.
Mehta stated that the court had earlier earmarked three issues. We had also filed our response to these three issues. However, the written submissions of the petitioners now exceed several other issues. "I have filed my affidavit in response to these three issues. My request is to confine it to the three issues only,” the law officer said.
Sibal and senior lawyer, Abhishek Manu Singhvi, appearing for some petitioners objected to it and said, there cannot be any piecemeal hearing.
One of the issues the court had earmarked was the power to denotify properties declared as waqf by courts, waqf-by-user or waqf by deed. The second issue was in connection with the composition of state waqf boards and the Central Waqf Council, where they contend only Muslims should operate except ex-officio members. The third issue relates to a provision that says a waqf property will not be treated as a waqf when the collector conducts an inquiry to ascertain if the property is government land.
Rajeev Dhavan, Singhvi and Huzefa Ahmadi alleged that the Act singled out the Muslim community in the case.
"It is only the Muslim community, where property has been dealt with in this way....A client of mine, who is Sikh, says I want to contribute to the waqf and I believe this property should not be taken away. The entire secular edifice that your lordships have built time and time again (will be taken away)," Dhavan said.
Echoing on similar voices with Dhavan, Sibal said that if a Waqf property was declared as a protected ancient monument under the AMASR Act, that did not affect the ownership or use of the property as a Waqf.
He cited the example of the Delhi Jama Masjid, though notified as a protected area, can be used as a Waqf. However, the 2025 Amendment (Section 3D) invalidates Waqf declarations of protected monuments, he contended. This is a violation of the fundamental rights under Articles 14, 25 and 26.
Earlier in the last hearing on May 15, an assurance was given by Mehta that no waqf properties, including those established by user, would be denotified. He assured that no appointments to the Central Waqf Council or State Waqf Boards would be made under the 2025 Act, till May 20.
The apex court was hearing five petitions -- out of more than 100 -- after noting that it was impossible to hear all the pleas in the matter, as more or less, the prayers were strikingly similar.
The Centre on April 25 defended the Waqf Amendment Act, 2025, as valid, lawful exercise of legislative power. While filing a detailed reply in the Supreme Court, the Union requested it to dismiss the batch of petitions challenging the constituional validity of it.
"It is a settled position in law that the constitutional courts would not stay a statutory provision, either directly or indirectly, and will decide the matter finally," said, the Centre, in its reply filed before the top court.
The UOI filed the reply after complying with the top court's order asking it to file the same before it.
The Centre said, shockingly after 2013, there were an addition of over 20 lakh hectare (precisely 20,92,072.536) in waqf land. "Right before even Mughal era, pre-independence era and post-independence era, the total of waqfs created was 18,29,163.896 acres of land in India," said, the Centre, through its affidavit filed in the top court.
"For last 100 years wakf by user is recognised only upon registration and not by word of mouth. Hence, the amendment was in sync with consistent practice. There will be maximum of two non-Muslims among 22 members in the Waqf Council and Aukaf Boards, a measure that is representative of inclusiveness and not intrusive of the administration of Waqfs," the Centre said.
The affidavit added that the identification of government land deliberately or wrongly mentioned as waqf properties is to set the revenue records right and that govt land cannot be treated as land belonging to any religious community.
The Centre, in its 1,332-page preliminary counter affidavit, submitted that there cannot be a "blanket stay" on the law as there was a "presumption of its constitutionality".
The Centre submitted that the law was not violative of the fundamental rights guaranteed under the Constitution. "The amendments are only for the regulation of the secular aspect regarding the management of the properties and hence, there was no violation of the religious freedoms guaranteed under Articles 25 and 26 of the Constitution," it said.
