NEW DELHI: After three days of intense arguments, the Supreme Court on Thursday reserved its order on the issue of interim relief on hearing a batch of pleas challenging the Constitutional validity of Waqf (Amendment) Act, 2025.
A two-judge bench of the apex court, headed by Chief Justice B R Gavai and Justice Augustine George Masih on Thursday reserved its order on the batch of pleas challenging the Act.
During the hearing on Thursday, the Union of India (UOI), through its senior law officer Solicitor General Tushar Mehta, had submitted that Waqf management had misused monuments, giving rooms for shops and making unauthorised alterations. It was vehemently opposed by senior lawyer Kapil Sibal appearing for some petitioners. “For that, there are other laws which deal with such issues. You cannot take my right over the waqf property because of these issues,” Sibal stated.
The Centre, while strongly defending the Amendment Act, submitted that there was no ground for staying a “validly enacted statute” by the competent legislature. “The very fact that the court has to hear the batch of pleas for interim stay for three days, shows there is nothing ex-facie unconstitutional with the law. Mere legal arguments are insufficient to stay the statute. There is no ground for staying a validly enacted statute by the competent legislature," Mehta argued before the top court.
He submitted that creating a Waqf is different than donating to a Waqf, this is why five years practice requirement for Muslims so that Waqf is not used for defrauding someone. "Suppose I am a Hindu and I want to donate for Waqf, then donation can be made to a Waqf. How can a non-Muslim be allowed to create a Waqf. He can always donate to a Waqf," said Mehta.
Delving into the batch of pleas that these were filed without any proper materials to support, Mehta argued that three days of hearings had revealed no ex-facie evidence of unconstitutionality. He questioned that mere legal propositions or hypothetical arguments do not justify halting the operation of a law duly enacted by the Parliament.
Sibal argued that can waqfs used for religious purposes, merely for being unregistered, be stripped of the status. "Can the government for its own fault of not conducting surveys now claim waqf properties as government land by a legislative fiat?," Sibal questioned.
Senior Advocate Rakesh Dwivedi, appearing for the State of Rajasthan, supports the 2025 Act. He said that ‘waqf by user’ is not a core practice of Islam, as it did not involve any formal dedication. It was merely a way of holding land as waqf through adverse possession.
Senior advocate Ranjeet Kumar appearing for Haryana government and a tribal organisation supporting the 2025 Amendments, said in Rajasthan, a Waqf claim was made over a 500-acre land given for mining purposes.
On the other hand, Mehta, however, opposed these submissions of Sibal, and said that the dedication of land as waqf is permanent and irreversible. Therefore, land belonging to members of Scheduled Tribes cannot be dedicated as waqf.
"The state restricts the alienation of tribal land to protect tribal communities. Otherwise, anyone could become a mutawalli (Manager of waqf property) and misuse the waqf to their detriment," the Centre's law officer contended.
Mehta further argued that Muslim tribals are being victimised. “There may be differing points of view,” he says, “but that cannot be a ground to stay the operation of a duly enacted law.”
The CJI Gavai made it clear that the court will not hear any petitions challenging the Waqf Act 1995 and that the proceedings will be restricted to the 2025 amendments.
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 Wakfs," the Centre said.
The affidavit added that the identification of govt 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.
