In response to the petitions challenging the Waqf(Amendment) Act 2025, Solicitor General of India Tushar Mehta today made the following statements before the Supreme Court :
1. Non-Muslims won’t be appointed to Central Waqf Councils and State Waqf Boards in terms of the amended provisions during the hearing.
2. Waqfs, including waqf-by-user, whether declared by way of notification or registration, will not be de-notified till the next date of hearing.
The Court recorded the statement in its order as follows : “During the course of the hearing, Solicitor General states that the Union would like to put a response within 7 days. He further assures the Court that no appointments will be made to the Council and Board under S.9 and 14. Till the next date of hearing, waqf, including waqf by user, already registered or declared by way of notification, shall neither be de-notified or the Collector will change. We take the statement on record.”
The Court posted the matter to May 5 at 2PM for the next hearing. The Court also changed the cause-title of the case as “In Re : Waqf Amendment Act.” Yesterday, the Court had proposed to pass an interim order, and the matter was posted today to hear the Union. At the commencement of today’s hearing, Solicitor General of India Tushar Mehta said that the stay of a legislation, whether directly or indirectly, is an extraordinary measure, and cannot be done based on a mere tentative reading of the provisions. “We have received lakhs and lakhs of representations which contributed to some of these amendments. Villages were taken as waqfs. Private properties were taken as waqfs. This affects a large number of innocent people,” SG said.
“Your lordships are taking a serious and harsh step by staying directly or indirectly statutory provisions without proper assistance,” SG said, requesting time of one week to produce the materials. CJI Khanna then replied, “Mr. Mehta, we have a particular situation. We pointed out certain infirmities. We also said there are some positive things. But we don’t want the situation prevailing today to change so drastically that it affects the rights of the parties. There are provisions such as 5 years practice of Islam, we are not staying that. Yes, you are right. There is a thumb rule, that Courts won’t stay legislations ordinarily. But there is another thumb rule, when the petition is pending before the Court, the situation which is prevailing should not change so that the rights of persons are not affected.”
SG Tushar Mehta again raised his request for time. CJI then said that time can be granted, but on condition that non-Muslim members would not be nominated to the Waqf Boards and Central Waqf Council and that registered Waqfs wouldn’t be changed. SG made a statement that no such appointments would be made. CJI however, said that the SG can only speak for the Union and cannot submit on behalf of the States (which appoint to the Boards). SG said that the Court can order that if any State makes such appointments, then it would be void. A bench of Chief Justice Sanjiv Khanna, and Justices Sanjay Kumar and KV Viswanathan is heairng more than 70 petitions that have been filed challenging the 2025 Act, and one petition has been filed challenging the Parent Act, the Waqf Act, 1995, for two days.
Yesterday, the Court proposed that it would issue an interim order on three issues:
1. All properties declared by the Court as waqf, whether they are waqf by user or waqf by deed, would not be denotified during the pendency of this matter.
2. The proviso which says the waqf property will not be treated as waqf while the Collector is determining its status, shall not be given effect to.
3. All members of the Central Waqf Council and the State Waqf Boards must be Muslim, except the ex-officio members.
Brief account of yesterday’s proceedings
On Day 1, Senior Advocate Kapil Sibal led the arguments for the petitioners’ side. Whereas, Solicitor General Tushar Mehta, for the Union, led the Respondents’ side. Sibal argued that various provisions of the 2025 Act are per se unconstitutional, especially the omission of the ‘waqf by user’ provision and the inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board. He stated that most of the waqf, for instance Jama Masjid, Delhi, is waqf by the user, and if they were forced to give a deed now, it would be impossible to furnish it as waqf can also be created orally. “They will ask us if there was a Waqf creacreated 300 years ago, and to produce the deed. Many of these properties were created hundreds of years ago, and there won’t be any documents,” Sibal said.
As soon as SG Mehta began his arguments, CJI asked: “Are you now saying that waqf-by-user, even if established by judgments of the Courts or otherwise without dispute, are void now?
“If registered, no(they will remain as waqf if they are registered),” SG answered.
Sibal had also pointed out that the newly inserted provision says that if the property is disputed, its status as waqf will not remain until a designated officer does an investigation and finds out if the property belongs to the waqf or the Government. CJI said that if the omission of the ‘waqf by user’ is to be read with this provision, then there is ambiguity.
“What prevented them from registering?” SG asked.
CJI Khanna also flagged the provision that says the property won’t be a waqf the moment the Collector starts investigating if it is government land.
“Is that fair?,” CJI Khanna asked.
SG said that the use as a waqf is not stopped, and the provision only says that it won’t get the benefits as a waqf in the meantime. Another issue raised by Sibal was the nomination of non-Muslim members in the Central Waqf Council and Waqf Boards, which amounts to arbitrary interference with the administration of religious affairs of a religion.
CJI asked: “Mr Tushar Mehta, are you arguing that as far as the Hindu endowments or Hindu religious bodies are concerned, you will allow minorities, including Muslims to be a member of the Board or Council? Please say that very openly.”
Mehta referred to the Joint Parliamentary Committee’s report and stated that, other than ex-officio members, only two members will be non-Muslim. SG stated that he would file an affidavit and said that the present composition of Board will continue till the end of their term. (Live Law)
