Challenges to amended Waqf Act: No interim order passed, SC raises key issues as hearing to continue tomorrow

Supreme Court

Hearing a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025, the Supreme Court on Wednesday proposed halting the de-notification of properties classified as waqf, including those designated through “waqf by user”. The government, however, opposed the move, requesting a hearing before any such order is passed.

The apex court also asked the Centre if Muslims would be allowed to be part of Hindu religious trusts. The court expressed concern over the violence that followed the law’s enactment, and the court will pass an appropriate order after examining the details of incidents of violence.

While delving into the options available before it, CJI said that either we decide this challenge here, or we send it to a common High Court, or we call for all those petitions and decide it here. To this, Senior Advocate Harish Salve said that the challenge to the 1995 Act survives and the bench can decide the whole matter. He also pointed out that there is one petition still pending before this SC and “both sides of the picture are available and my lords may decide finally” and there is no need to call High Court petitions.

The hearing began with Sibal, referring to Articles 25 and 26 (which essentially deal with freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens and freedom to manage religious affairs) and arguing that the Waqf Amendment will lead to undue interference essential and integral part of faith.

Sibal challenged the constitutional validity of Section 3(C)(2), which states that: If any question arises as to whether any such property is a Government property, the State Government may, by notification, designate 5 on Officer above the rank of Collector (hereinafter referred to as the designated officer), who shall conduct an inquiry as per law, and determine whether such property is a Government property or not and submit his report to the State Government: Provided that such property shall not be treated as waqf property till the designated officer submits his report.

Sibal also challenged the Section 3(r) of the Waqf Act. Earlier Waqf could be formed by declaration, user, or endowment (waqf-alal-aulad). Now, the new act removes waqf by the user and allows formation only through declaration or endowment. It also mandates that donors must be practising Muslims for at least five years and must own the property. Contending this change, Sibal had argued, “If want to set up waqf, I have to show the State that I am practising Islam for 5 years. If I am born a Muslim, why would I do that? Who is the State to Judge?

Senior Advocate AM Singhvi said that deletion of 'waqf-by-user' can pose serious problems as half of the Waqf properties are properties that are ‘waqf-by-user’.

Sibal also challenged the Sections 3(C), 3(C) (2), 3(E) of the Waqf Act. He submitted that the State has identified an officer who is the officer of the Government which Sibal argued, was “per se unconstitutional”. Apart from this the inclusion of non-Muslim members in State waqf boards and the Central Waqf Council has also been challenged as it was argued by the petitioners that it infringes the right of religious denominations to manage their affairs, as guaranteed under Article 26 of the Constitution.

Petitioners have also challenged the clause regulating inheritance in the new act. The new act provides that Waqf-alal-aulad cannot deny inheritance rights to female heirs. On the question of inheritance Sibal contended, "Who is the state to tell us how inheritance will be in my religion”, to which CJI responded, “But in Hindus, it does happen. So parliament has enacted a law for Muslims.. may be not like of the Hindus.. Article 26 will not bar the enactment of law in this case. Article 26 is universal and it is secular in the fashion that it applies to all”.

Initially, the bench remarked that it was considering passing an interim order which would “balance equities”. As reported by the Bar and Bench, the bench said, “Our interim order will balance equities. We will say -One, whichever properties were declared by the court to be waqf will not be de-notified or be treated as non-waqf.. whether it is waqf by user or not. Second. The collector can continue with proceedings .. but the provision will not be given effect to. Third, Regarding board and council.. ex officio members can be appointed. But the other members have to be Muslims."

However, the court did not pass any interim order but before rising for the day it did take note of the violence taking place in West Bengal amidst the protest against the Waqf Amendment Act. While raising for the day, CJI said, “One thing is very disturbing. The violence that is taking place,” CJI noted.