Staff Reporter / AMN
The Supreme Court today heard the petitions challenging the Waqf (Amendment) Act 2025 on the question of passing interim orders. During the hearing, the bench comprising Chief Justice BR Gavai and Justice AG Masih observed that for a stay of the statute, a strong case has to be shown. The Chief Justice emphasized that courts cannot interfere with laws passed by Parliament unless a glaring unconstitutionality is demonstrated. The bench will hear the Union Government tomorrow.
Senior Advocate Kapil Sibal’s arguments during the Supreme Court hearing on Waqf (Amendment) Act, 2025.
Non-Judicial Capture of Waqf Properties:
Sibal argued that the 2025 Act facilitates a “capture” of Waqf properties through an executive, non-judicial process, which he described as a betrayal of its stated purpose of protection. Under the new law, if a dispute arises over a Waqf property—regardless of its nature—an officer above the rank of Collector is empowered to adjudicate. During this inquiry, the property loses its Waqf status, effectively allowing the government to take control without due judicial process. Sibal emphasized that this mechanism bypasses established legal safeguards, enabling arbitrary state intervention and undermining the sanctity of Waqf as a permanent religious endowment.
He suggested that this process lacks transparency and fairness, as the executive becomes both the arbiter and a potential beneficiary, which could lead to misuse of power.
Nature of Waqf as an Endowment:
Sibal elaborated on the fundamental Islamic concept of Waqf, describing it as a permanent endowment to Allah for religious or charitable purposes, meaning it cannot be sold, gifted, or transferred once dedicated—”once a Waqf, always a Waqf.”
He argued that the 2025 Act violates this principle by allowing the nature of a Waqf to change if a dispute arises, such as an encroachment claim. For example, if someone disputes the property’s status, the Act permits its reclassification, effectively nullifying its religious character without a proper legal challenge. This, Sibal contended, disrupts centuries-old traditions of Waqf management and threatens the religious autonomy of the Muslim community.
He underscored that this provision could be exploited to dispossess Waqf properties under the guise of resolving disputes.
Historical Context and State Funding:
Sibal provided a broader context by explaining that the Indian Constitution prohibits the State from financing religious institutions like mosques or burial grounds, unlike temples that might receive offerings. He noted that Waqf properties, such as burial grounds, rely entirely on private charity for maintenance since they generate no income—people simply use them to bury loved ones. He argued that the 2025 Act jeopardizes this system by allowing the state to alter the Waqf status of such properties, particularly in cases of alleged encroachment. For instance, if an encroacher claims a portion of a Waqf property, the Act permits its reclassification, which could lead to the loss of community-managed religious spaces. Sibal stressed that these properties must be preserved through community efforts, and the Act’s provisions undermine this by enabling state interference.
He also drew parallels with other religious sites like dargahs, which the CJI acknowledged as having similar charitable maintenance practices.
Departure from Past Legislation:
Sibal traced the legislative history of Waqf laws in India (1913, 1923, 1954, 1984, 1995, 2013) to argue that the 2025 Act represents a “complete departure” from established norms. He highlighted two key concepts—”Waqf by user” (properties used for religious purposes over time) and “dedication” (formal endowment)—which were recognized in prior laws and even in landmark cases like the Babri Masjid dispute.
The 2025 Act eliminates “Waqf by user,” requiring documentary proof of ownership, which Sibal argued is impractical for properties dedicated centuries ago. He contended that this shift erases historical practices and legal precedents, effectively rewriting the framework for Waqf recognition in a way that disadvantages the Muslim community by imposing modern bureaucratic standards on ancient traditions. This change, he warned, could lead to the loss of numerous Waqf properties that lack formal deeds but have been used for religious purposes for generations.
Registration Requirements and Consequences:
Sibal delved into the registration requirements under previous Waqf laws, particularly the 2013 Act, which mandated registration but did not specify consequences that altered a property’s Waqf status if unregistered—only the Mutawali (Waqf administrator) faced penalties like removal. In contrast, the 2025 Act declares that unregistered properties will not be regarded as Waqf, a significant shift that Sibal argued threatens properties created 100, 200, or even 500 years ago, as many lack formal documentation due to their historical origins. He emphasized that the earlier laws used the term “shall” for registration but did not tie non-compliance to the loss of Waqf status, whereas the 2025 Act explicitly changes the property’s character, which he called a “complete departure” from past practice.
This, he argued, disproportionately affects historical Waqfs, potentially leading to their reclassification as non-Waqf properties.
Waqf by User and Registration History:
Expanding on the “Waqf by user” concept, Sibal clarified that prior to 2013, such properties—where long-term religious use established Waqf status—did not require registration, a practice rooted in Islamic tradition and recognized in Indian law. After the 1923 Waqf Act, registration became mandatory, but the absence of consequences for non-registration meant the Waqf status remained intact. The 2025 Act, however, abolishes “Waqf by user” for future properties and imposes strict documentation requirements, which Sibal argued is impractical for historical Waqfs. He pointed out that even after 1954, when registration was further emphasized, the law did not mandate that “Waqf by user” properties lose their status for non-registration—only the Mutawali was held accountable. The 2025 Act’s requirement to prove who established a “Waqf by user” property, Sibal contended, is a retroactive burden that undermines established religious practices.
Impact of Ancient Monuments Acts:
Sibal argued that under the Ancient Monuments Preservation Act, 1904, and the Ancient Monuments and Archaeological Sites and Remains Act, 1958, Waqf properties declared as ancient monuments (e.g., Jama Masjid) retained their Waqf status and the right to religious practice. The government could preserve these sites without transferring ownership, ensuring that Muslims could continue to worship there. The 2025 Act, however, allows the government to take over ownership of such properties, which Sibal claimed violates Articles 25 (freedom to practice religion) and 26 (right to manage religious affairs) of the Constitution. He argued that this “complete takeover” erases the religious character of these sites, as the right to worship could be curtailed under the guise of preservation, unlike the earlier laws that balanced preservation with religious use.
He cited examples like Khajuraho, where religious practice continues despite archaeological custody, to highlight the potential loss of rights under the new Act.
Five-Year Practice Requirement:
Sibal challenged the 2025 Act’s provision requiring a person to have practiced Islam for at least five years before creating a Waqf, calling it “per se unconstitutional.” He argued that this requirement infringes on the fundamental right to create a Waqf, protected under Articles 25 and 26, as it imposes an arbitrary condition on a religious act. He questioned the practicality and fairness of this rule, asking who would determine a person’s adherence to Islam—suggesting that authorities might intrude into personal lives to verify religious practice, such as visiting homes or scrutinizing individuals on their deathbeds. Sibal contended that this provision discriminates against Muslims by placing a unique burden on their religious endowments, violating the right to equality under Article 14.
Expropriation in Scheduled Areas:
Sibal highlighted Section 3(E) of the 2025 Act, which allows Waqf properties in areas with Scheduled Castes and Tribes to be declared non-Waqf, describing this as “expropriation on the face of it.” He argued that this provision disproportionately affects Muslim populations in these regions, as it enables the state to strip these properties of their Waqf status without adequate justification or process. Sibal pointed out that many Muslim communities in Scheduled areas rely on Waqf properties for religious and charitable purposes, and this provision could lead to the loss of such assets, effectively erasing their religious and cultural heritage. He submitted a schedule of Muslim populations in these areas to emphasize the scale of the impact.
Non-Muslim Representation in Waqf Bodies:
Sibal strongly objected to Sections 9 and 14 of the 2025 Act, which allow non-Muslims to constitute a majority in the Central Waqf Council and State Waqf Boards, as well as the appointment of a non-Muslim CEO by the state government. He noted that prior laws, such as the 1995 Act, required these bodies to be composed entirely of Muslims, with some members elected by Muslim organizations, ensuring community representation. The 2025 Act, however, mandates non-Muslim representation (e.g., 12 non-Muslims versus 10 Muslims in the Central Waqf Council) and shifts to a fully nominated system, which Sibal described as a “conceptual capture” of Waqf management. He argued that this violates Article 26 by undermining the Muslim community’s right to manage its religious affairs, as non-Muslims could now dominate decision-making processes for Waqf properties.
He also pointed out that earlier laws explicitly required the CEO to be Muslim, a safeguard now removed.
Interim Relief and Irreparable Injury:
Sibal sought interim relief to halt the implementation of the 2025 Act’s provisions, arguing that the petitioners had established a prima facie case of unconstitutionality. He stressed that activating these provisions would cause irreparable injury to the Muslim community, such as the immediate application of the five-year practice requirement, which could prevent individuals from creating Waqfs, and the potential loss of Waqf status for unregistered or disputed properties. He warned that once these properties are reclassified or taken over, reversing the damage would be nearly impossible, as Waqf properties are meant to be inalienable. Sibal urged the court to consider the long-term consequences of the Act, particularly for historical Waqfs, and to grant interim protection to preserve the status quo until a final decision is reached.
These elaborated arguments reflect Sibal’s broader contention that the Waqf (Amendment) Act, 2025, fundamentally alters the legal and religious framework for Waqf properties in India, infringing on constitutional rights to religious freedom, equality, and the management of religious affairs. He framed the Act as a mechanism for state overreach, potentially leading to the erosion of Muslim religious and cultural heritage.