Waqf law on pause till Centre details its case in Supreme Court

The Supreme Court on Thursday recorded the Centre’s assurances protecting the status of any waqf, including waqf-by-user, property declared so by notification or registered, from being de-notified and on not appointing any non-Muslims to the Waqf Council or boards until the next hearing on the matter in the first week of May.

The court permitted the Centre to file a detailed response to the petitions challenging the constitutional validity of the Waqf Amendment Act, 2025 before the next date.

A day after the top court indicated that the present law suffers from flaws that it intends to correct by an interim order, solicitor general Tushar Mehta appeared for the Centre and made a fervent appeal not to stay the operation of the Act, either directly or indirectly, without allowing the Centre to place the material weighed by the Parliament and the Joint Parliamentary Committee (JPC) to pass the law in its present form.

The court had raised three concerns over the 2025 Waqf Act, namely the status of waqf-by-user declared earlier by courts, appointment of non-Muslims in the Central Waqf Council and state Waqf Boards, and not allowing a property to operate as waqf if it is disputed as belonging to the government.

Mehta said, “These questions are pertinent. But this is not a case where the court will consider stay of the law as it must be considered in the light of voluminous material. We as government and Parliament are answerable to the people and there were scores of letters received from people who said their private lands and villages are being taken over as waqf.”

Allowing a week’s time for the Centre to submit its response, the bench led by Chief Justice of India (CJI) Sanjiv Khanna posted the matter on May 5 and said, “Till the next date of hearing the solicitor general assures that no appointments would be made to the Central Waqf Council and the Waqf Boards in the states and NCT of Delhi under sections 9 and 14 of the 2025 Act. He further states that if the Government of any State or the National Capital Territory of Delhi makes any such appointment(s), the same may be declared void.”

The bench, also comprising justices Sanjay Kumar and KV Viswanathan, recorded the SG’s assurance that “till the next date of hearing, no Waqf, including a Waqf by user, whether declared by way of notification or by way of registration, shall be de-notified, nor will their character or status be changed.”

The court observed, “There may be infirmities in the earlier law. We had also said that the present law has many positive things. But at the same time, we do not want the situation to change so drastically that it affects the petitioners.”

Any direction to stall the operation of the Act will be very “harsh”, Mehta said, pointing out, “This affects a large number of people whose right to land and property is to be decided. Even for considering the fallout of the court’s order, this matter needs to be first heard.”

The court was of the view that while dealing with the validity of laws, normally the thumb rule is that the law is not stayed. At the same time, the bench added, “Another thumb rule is that the situation prevailing today should continue so that the right of persons is not affected.”

The Congress hailed the Supreme Court and said, “the earlier legal position on the three points have been re-established by the SC and called it “an important step in restoring the order.”

Congress general secretary KC Venugopal tweeted, “The Supreme Court’s observations...have opened the space for a broader and necessary debate on the legitimate concerns surrounding this hastily enacted legislation — concerns that were neither adequately addressed during the JPC deliberations nor after the day-long discussion in Parliament.”

Six states of Assam, Rajasthan, Haryana, Chhattisgarh, Madhya Pradesh and Maharashtra which have intervened to support the Act also urged the court not to stay the legislation. Senior advocates Rakesh Dwivedi and Ranjit Kumar said “heavens will not fall” if a week’s time is granted to file a response.

Mehta said, “Within a week, as per my reading of the provisions, nothing can happen even if the government wants to, as appointment is in my hands.” The court noted that not all states are before it and the appointment to Waqf Boards falls under the prerogative of state governments. The law officer said, “If by the next date, any state makes appointments, it may be treated as void. Nothing can happen within a week even if governments want to.”

Chhattisgarh represented by senior advocate Ravindra Srivastava pointed out that the Waqf Board is supporting the state in implementing the new law. But the CJI remarked, “I am sure there will be Muslims supporting the legislation.”

Mehta said, “If by the next date, any state makes appointments, it may be treated as void,” as he tried persuading the court not to pass any order.

The court persisted on getting an assurance with regard to the status of waqf, including waqf-by-user, as the petitioners represented by senior advocates Kapil Sibal and Abhishek Manu Singhvi pointed out that this was one of the prime concerns expressed by the bench during Wednesday’s hearing.

Singhvi expressed apprehensions that section 3C of the Act declares that “any government property, identified or declared as waqf property, before or after the commencement of this Act, shall not be deemed to be a waqf property”. Sibal pointed out that many properties that have continued as ‘waqf-by-user’ for centuries cannot be told to get registered.

A waqf is a Muslim religious endowment, usually in the form of landed property, made for purposes of charity and community welfare. The act, passed by Parliament and ratified by the President earlier this month, implements major changes in the regulation and governance of India’s waqf boards.

It scraps the waqf-by-user provision – where a property is acknowledged as waqf because it has been used for religious activities for some time, despite there being no official declaration or registration as waqf – for future cases, permits women, Shia sects and government officials to be members of waqf bodies, and gives overriding power to senior officials to determine if a government property belongs to a waqf.

The amendment also allows only a person “showing or demonstrating that he is practising Islam for at least five years” to donate properties to waqf and stipulates that women and other rightful heirs can’t be denied their inheritance due to the creation of a waqf.

The bench assured the petitioners that the assurances made by the solicitor general include waqf-by-user properties as well that are either declared by notification or registration.

Noting that more than 70 petitions have been filed challenging the law, the court directed the petitioners to select five lead petitions that will be listed under a common title “In Re: Waqf Amendment Act 2025” while pointing out that on the next date, the case will be taken up for preliminary hearing and for passing any interim directions, if required.

The bench nominated one lawyers on each side to prepare a compilation of responses and documents for streamlining the hearing of the matters. On being told that the Waqf Act of 1995 and 2013, now replaced by the 2025 Act, are also under challenge in petitions forming the batch of 70 petitions, the court directed them to be segregated and separately listed on the next date.

The petitions challenging the 2025 Act filed by parliamentarians, political parties, and religious leaders have claimed the law to be an assault on fundamental rights of Muslims to practise their religion and administer properties. They further claimed that limiting Muslim membership to just 8 out of 22 in the Waqf Council and 4 out of 11 in the board was a usurpation by the government. On Wednesday, the bench had asked the Centre if Muslims would be allowed to become members in endowments managed by Hindus.