Challenge to the Waqf amendment: As SC reserves interim order, a look-back on three days of arguments
After three days of hearings between May 20 and May 22, the Court noted there was presumption of constitutionality even as certain aspects required detailed consideration. Here is a run-down of the arguments by petitioners, respondents, and the rejoinders.
Sadeeq Sherwani
Published on: 26 May 2025, 07:28 am
ON MAY 22, THE SUPREME COURT RESERVED ITS INTERIM ORDER in Re: Waqf (Amendment) Act, 2025. The bench comprising Chief Justice of India B.R. Gavai and Justice Augustine G. Masih heard the batch of petitions for three days, starting May 20.
The scope of the hearings was limited to whether an interim relief, such as a stay on specific provisions of the Act, was warranted.
What did petitioners argue?
Senior Advocate Kapil Sibal, along with Senior Advocates A.M. Singhvi, Rajeev Dhavan, Huzefa Ahmadi and others, led the petitioners challenging the validity of the Act. They opposed the Union’s attempt to limit hearings to three issues (denotification, waqf-by-user, and board composition), insisting that the Act’s broader constitutional implications required a comprehensive review.
The petitioners contended that certain provisions of the Act are vague, arbitrary, intrusive, and unconstitutional, and that the law facilitates executive overreach to undermine the religious rights of the Muslim community and encroach upon the property rights of people wanting to create a waqf.
They argued that activating the Act’s provisions would cause irreparable harm by altering waqf property status and management, potentially leading to loss of religious and cultural heritage.
Sibal described the Act as a “creeping acquisition” of waqf properties by the Union, undermining Muslim religious autonomy. He argued that waqf properties, as endowments to Allah, are inalienable under Islamic law, and the Act, despite being framed as a measure to protect waqf properties, is designed to “capture” them through a non-judicial, executive process which bypasses judicial oversight, allowing the government to control waqf properties arbitrarily.
Tracing the legislative history of waqf laws, Sibal argued that the 2025 Act marks a “complete departure” from established principles of waqf by user and dedication. He noted that prior laws, including the 2013 Act, mandated registration but did not penalise non-registration by altering a property’s waqf status – rather, they provided for action against the Mutawalli (caretaker).
Sibal described the Act as a “creeping acquisition” of waqf properties by the Union, undermining Muslim religious autonomy.
The 2025 Act, however, invalidates unregistered waqfs, fundamentally changing their character.
“The waqf status is lost the moment an inquiry begins,” Sibal stated while criticising Section 3C, which empowers District Collectors to inquire into waqf property ownership and suspend waqf status pending inquiry. Sibal said the provision lacks judicial oversight and pushes waqf owners into litigation without legal remedies, violating due process and Article 300A.
He highlighted that the Act enables the Government to declare waqf properties void, which he argued amounts to a “complete takeover” of these properties, taking away the perpetuity of waqf and stripping the properties of their religious character.
He also challenged the requirement under Section 3(r) of proving that a person has practised Islam for five years before creating a waqf. He said such a requirement is arbitrary and violative of Article 25, as it imposes state-defined criteria on a religious act. Calling the provision “per se unconstitutional” and “wholesale takeover of a community’s rights,” Sibal questioned, “Who is the State to tell us how inheritance will be in my religion?” and “If I want to create a waqf before I die, do I have to wait for 5 years?”
