New Delhi, Apr 16: The Supreme Court on Wednesday proposed to order that the properties declared as waqf, including “waqf by user”, won’t be de-notified, but the Centre opposed the suggestion and sought a hearing before such a directive.
The top court also asked the Centre if Muslims would be allowed to be part of Hindu religious trusts.
“The properties declared by courts as waqfs should not be de-notified as waqfs, whether they are by waqf-by-user or waqf by deed, while the court is hearing the challenge to the Waqf Amendment Act 2025,” the bench said.
The top court went on, “All Members of the waqf boards and the central waqf Council must be Muslims, except the ex-officio members.”
A bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan in the hearing earlier considered referring the pleas to one high court, but later heard at length a battery of senior advocates, including Kapil Sibal, Abhishek Singhvi, Rajeev Dhavan, and Solicitor General Tushar Mehta, who represented the Centre.
The top court also expressed concern over the violence that followed the law’s enactment and said it was disturbing when it was seized of the matter.
The CJI further proposed to pass an order to say that ex-officio members could be appointed regardless of their faith, but others had to be Muslims.
The apex court questioned Mehta on how “waqf by user” can be disallowed as many would not have requisite documents to get such waqfs registered.
“Waqf by user” refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn’t a formal, written declaration of waqf by the owner.
“How will you register such waqfs by the user? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have also gone through the Privy Council judgments. Waqf by the user is recognised. If you undo it, then it will be a problem. Legislation cannot declare a judgment, order, or decree void. You can only take the basis,” the bench said.
Mehta, however, submitted that there was a large section of Muslims who did not want to be governed by the Waqf Act.
The bench then asked Mehta, “Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards? Say it openly.”
The apex court said that when a public trust was declared to be a waqf 100 or 200 years ago, it couldn’t suddenly be taken over by the waqf board and declared otherwise.
“You cannot rewrite the past,” the bench said.
Mehta submitted that a joint parliamentary committee had 38 sittings and examined 98.2 lakh memorandums before Parliament’s both houses passed it.
The CJI at the start of the hearing said, “There are two aspects we want to ask both sides to address. Firstly, whether we should entertain or relegate it to the High Court? Secondly, point out in brief what you are urging and wanting to argue? We are not saying there is any bar on SC in hearing, deciding pleas against the law.”
Sibal, appearing for the petitioners, referred to the Waqf Amendment Act and said was challenging the provision that says only Muslims could create a waqf.
“How can the state decide whether, and how, I am a Muslim or not, and hence, eligible to create waqf?” Sibal asked.
He added, “How can the government say only those who are practising Islam for the last five years can create a waqf?”
Senior advocate Abhishek Singhvi, who represented some of the petitioners, submitted that Waqf Act would have all India ramifications and pleas should not be referred to the high court.
Senior advocate Huzefa Ahmadi, opposing the Waqf Act, said Waqf by user was an established practice of Islam and couldn’t be taken away.
The Centre recently notified the Waqf (Amendment) Act, 2025, which got the assent of President Droupadi Murmu on April 5 after its passage from Parliament following heated debates in both houses.
The bill was passed in the Rajya Sabha with 128 members voting in favour and 95 opposing it. It was cleared by the Lok Sabha with 288 members supporting it and 232 against it.
About 72 petitions, including those by AIMIM leader Asaduddin Owaisi, All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), Congress MPs Imran Pratapgarhi and Mohammad Jawed, have been filed challenging the validity of the Act.
The Centre, on April 8, filed a caveat in the apex court and sought a hearing before any order was passed in the matter.
A caveat is filed by a party in the high courts and the apex court to ensure that no orders are passed without hearing it.