KKN Gurugram Desk | In a landmark development, the Supreme Court of India on Wednesday began hearing a series of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025. The three-judge bench, led by Chief Justice Sanjiv Khanna, along with Justices Sanjay Kumar and K.V. Viswanathan, has raised probing questions on multiple contentious provisions of the amended Act.
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One of the focal issues was the removal of the “Waqf by User” clause, which historically recognized properties used by the Muslim community for religious purposes, even if not registered.
Key Constitutional Issues Raised
The court made it clear that it will examine the following two critical constitutional questions:
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Whether the requirement of two non-Muslim members in the Waqf Board and Waqf Council is to be considered a minimum or maximum quota.
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Whether the “Waqf by User” provision was removed lawfully, and what implications this holds for unregistered historic religious sites.
CJI Khanna observed: “We are not imposing any stay on the Act as of now, but we will seek clear responses from the Union Government on the interpretation and implementation of these provisions.”
Senior Advocates Lead the Legal Charge
Kapil Sibal’s Arguments
Representing the petitioners, Senior Advocate Kapil Sibal argued that the Waqf (Amendment) Act, 2025 violates Article 26 of the Indian Constitution, which guarantees religious communities the freedom to manage their own religious affairs.
“How can the government decide who can create a Waqf? The law says only those practicing Islam for the last five years can initiate a Waqf. That’s arbitrary and unconstitutional,” Sibal argued.
He further raised concerns that:
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The inheritance of Waqf rights under Islamic law is being disrupted by premature government intervention.
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The Act denies recognition to Waqf properties already in use if not registered, especially under Section 3(c).
Sibal also referenced the Ram Janmabhoomi judgment, stating that religious usage without ownership can still hold legal value, and thus dismissing Waqf by user is legally and religiously problematic.
Dr. Abhishek Manu Singhvi’s Stand
Joining Sibal, Senior Advocate Dr. Abhishek Manu Singhvi expressed concern over the scale of properties impacted by the amendment.
“Out of approximately 8 lakh Waqf properties in India, at least 4 lakh are categorized as ‘Waqf by user’. This amendment puts their status in jeopardy,” he stated.
Singhvi highlighted the ambiguity in the new Rule 3(3)(da) of the Act, which gives extensive discretionary powers to District Collectors, potentially infringing on religious freedom and property rights.
He added:
“This is not a case to be diverted to High Courts. It involves serious questions under Articles 25, 26, and 32 of the Constitution.”
Other Legal Experts Weigh In
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Rajeev Dhavan, another senior advocate, argued that the law disrupts the internal structure of Islamic religious practice.
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Advocate CU Singh distinguished between religious and charitable intent, urging the court not to mix doctrinal interpretation with administrative policy.
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Advocate Huzefa Ahmadi warned that tying Waqf creation to religious identity could erode fundamental rights and create legal uncertainty.
Government’s Response: SG Tushar Mehta Defends the Law
Solicitor General Tushar Mehta, representing the Union Government, strongly defended the Waqf (Amendment) Act, calling it the product of democratic consensus and exhaustive consultation.
“The Act went through a Joint Parliamentary Committee, which conducted nationwide consultations and reviewed 2.9 million suggestions. This is not a hasty law; it is a result of thorough deliberation,” he asserted.
Regarding the removal of Waqf by user, Mehta questioned:
“Why were these properties never registered for centuries? If the religious community cared, what stopped them from formalizing these claims?”
The SG emphasized that the government is not targeting any faith but seeking legal clarity and property regularization.
CJI’s Sharp Interventions
CJI Khanna raised pointed questions during the hearing:
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“Why was the Waqf by User provision removed?”
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“What happens to historic mosques built before the 14th or 15th century that don’t have sale deeds?”
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“If the government declares such lands as public property, where does that leave the religious rights of communities?”
These questions signaled the court’s deep concern over the law’s retrospective implications on centuries-old religious practices.
Political Stakeholders and Petitions Filed
A total of 72 petitions have been filed against the Waqf (Amendment) Act, 2025, including:
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AIMIM leader Asaduddin Owaisi
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All India Muslim Personal Law Board (AIMPLB)
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Jamiat Ulema-e-Hind
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DMK and Congress MPs such as Imran Pratapgarhi and Mohammed Jawed
The central government had earlier filed a caveat requesting the court to hear its side before passing any interim order.
Legal Precedent: Role of Religious Usage in Property Rights
Several references were made to landmark cases including the Ayodhya verdict, where religious usage without ownership was given considerable weight.
Kapil Sibal reminded the bench:
“If I have been offering prayers at a site for generations, it becomes part of my religious identity—even if I don’t hold the legal title.”
This raises questions about the legitimacy of excluding unregistered but traditionally used properties from Waqf recognition.
What Happens Next?
The Supreme Court has not issued any stay on the Act as of now. The hearing will continue on Thursday, with the bench seeking more detailed submissions from the Centre.
CJI Khanna noted that the court might consider referring parts of the case to High Courts but acknowledged that certain issues of national constitutional importance must be addressed at the apex level.
The ongoing Supreme Court proceedings on the Waqf (Amendment) Act, 2025 have emerged as a critical test case for balancing religious rights, legal formalities, and state authority over land and worship.
With eminent legal minds on both sides and constitutional stakes running high, this case could have lasting implications on how India legislates religious property rights. The court’s final judgment could redefine how faith, land, and law interact in a pluralistic democracy.
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