Hearing the petitions challenging the validity of the Waqf Amendment Act 2025, the Supreme Court on Tuesday said that every law has a presumption of constitutionality in its favour. To get interim relief, you have to present a very solid and clear reason, otherwise, the presumption of constitutionality will remain. The court does not intervene unless a clear case is made out.
Petitioner's lawyer, Kapil Sibal, presented his arguments.
However, petitioners' lawyer Kapil Sibal, calling the law a violation of the right to religious freedom of Muslims and an occupation of Waqf properties, demanded an interim stay on it.
On the other hand, the Center justified the law and said that Waqf is a secular concept by its very nature, and it cannot be overlooked given the presumption of constitutionality. At the same time, it requested the court to limit the hearing on the aspect of the interim order to three issues.
The central government will present its side today
The central government will present its side in the matter on Wednesday. A bench of Chief Justice BR Gavai and Justice Augustine George Masih heard the petitions seeking an interim stay on the Waqf Amendment Act.
During this, the bench asked the petitioners opposing the law about the legal requirement to register the Waqf and the legal consequences of not registering it. The bench also said that there is already a provision in the law to register the Waqf, and those Waqfs which are registered will not be affected.
Sibal said this in front of the court.
On this, Sibal said that what about those Waqfs which are not registered and are Waqf by user (Waqf based on use)? In the new law, we will have to tell the name and address of the person doing the Waqf in Waqf by user, and if we are not able to tell, then they will not register, and they will say that it is not registered, hence there is no Waqf.
On the issue of interim order, senior advocate Sibal, on behalf of the petitioners, had argued that it is being said that this law is for the protection of Waqf, whereas its purpose is to take over Waqf.
Sibal mentioned various sections of the law.
He said that the law has been made in such a way that Waqf property is snatched without following any procedure. Sibal questioned the legality of various sections of the law and called the law a violation of the fundamental right to religious freedom and management of religious properties given in Articles 25 and 26 of the Constitution.
He said that the abolition of Waqf by User in the amended law, inclusion of non-Muslim members in the Central Waqf Council and State Waqf Boards, and the condition of being a practicing Muslim for five years for the person doing Waqf are wrong.
He also raised questions on not considering non-registered Waqf as Waqf property. During the hearing, the court also asked several questions to clearly understand the petitioners' side, such as whether it was mandatory to register a Waqf in the earlier Waqf law or was it voluntary? Was there any consequence for not registering?
Apart from Sibal, these lawyers presented their arguments.
Sibal said that the law had a provision for registering a Waqf and it was the responsibility of the Mutawalli to get the Waqf registered and action would be taken against the Mutawalli if the Waqf was not registered, but that law did not have a provision for the Waqf to be terminated if it was not registered.
Apart from Sibal, senior lawyers Abhishek Manu Singhvi, CU Singh, Rajiv Dhawan, Huzaifa Ahmadi also presented their side on behalf of the petitioners. All of them demanded an interim stay on the law till the final decision on the petitions is taken.
CJI asked several questions
On the demand for an interim order, the CJI said that there is a presumption of constitutionality about the Constitution and unless there is a clear case, the courts do not interfere. However, Sibal questioned the provision of the amended law and said that the right to manage the Waqf property has been taken away.
Earlier, despite the property being protected as an ancient heritage, the Waqf identity of the property did not end. Whereas in the new law, if it is declared a protected monument, then it will no longer be a Waqf.
At the same time, the CJI gave the example of Khajuraho and said that he had recently visited Khajuraho, where the temples are protected as ancient monuments, but people worship there.
This is what the CJI said.
The CJI asked Sibal whether he now loses the right to pray there. Sibal said that the new law says that if the property is declared an ancient monument or a protected property, then it is no longer a Waqf.
Once the Waqf ends, I no longer have rights over it. The court also asked several questions on Sibal's argument of having a majority of non-Muslim members in the Central Waqf Council and Waqf Boards and analyzed the law closely.
Sibal said that when there is no one from another religion in the case of the Hindu Charitable Trust, Sikh Gurudwara Management Committee, and Christians, then how can it be so only in the case of Muslims. This is a violation of the right to equality and the right to religious freedom.
The Center argued that there has been a 1600 percent increase in Waqf properties after the 2013 amendment. On this, Sanghvi said that this increase has happened due to digitization and listing processes, and not due to new acquisitions.
Solicitor General Tushar Mehta put forth his point.
Before the regular debate on the matter began on Tuesday, Solicitor General Tushar Mehta, appearing on behalf of the Center, urged limiting the hearing on the aspect of interim order to three issues. Said - The court had decided these three issues, and the Center has filed a reply on them. But Sibal opposed it and said that the court had not given such an order. The debate will be on all the issues of law.
Hearing cannot be done in pieces - Abhishek Manu Singhvi.
Abhishek Manu Singhvi also said that the hearing cannot be done in pieces. Let us tell you that the first issue is related to the power to denotify those properties which have been declared by the courts as Waqf, Waqf by User, or Waqf-by-Deed.
The second issue is related to the structure of the State Waqf Boards and the Central Waqf Council, where he argues that only Muslims should be employed. The third issue relates to the provision which says that when the collector examines whether the property is government land or not, the waqf property will not be treated as a waqf.
AIMIM, Jamiat Ulama-e-Hind have filed petitions
The court is hearing five main petitions on the constitutionality of the Waqf Amendment Act 2025, including the petition of AIMIM chief Asaduddin Owaisi and Jamiat Ulama-e-Hind. At the last hearing, the court had recorded the assurance given by the Center.
The central government had told the court this.
The central government had assured the court that non-Muslim members would not be appointed to the Central Waqf Council and State Waqf Boards till further orders.
Apart from this, the Center had also said that notified or registered waqfs, including waqf by user, will not be denotified, nor will their nature be changed.
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