'Need To Show Strong Case For Interim Order' : Supreme Court Hears Petitioners' Arguments To Stay Waqf Amendment Act 2025

The Supreme Court today (May 20) heard for over three hours the petitions challenging the Waqf(Amendment) Act 2025 on the question of passing interim orders.During the hearing, the bench comprising Chief Justice of India BR Gavai and Justice AG Masih orally observed that for a stay of the statute, a strong case has to be shown."There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there," CJI Gavai said.Senior Advocate Kapil Sibal, who opened the arguments for the petitioners, said that they have a strong prima facie case and asserted that "irreparable injury will be caused if the provisions are activated."At the outset of today's hearing, Solicitor General of India Tushar Mehta submitted that the hearing was meant to be confined to three issues, which were flagged by the previous bench on April 16. However, the written submissions filed by the petitioners addressed more issues, the SG said."The court had earmarked three issues. We had filed our response to these three issues. However written submissions of the petitioner now extend to several other issues. I have filed my affidavit in response to these three issues. My request is to confine it to the three issues only," SG said. Senior Advocates Kapil Sibal and AM Singhvi, for the petitioners, opposed the SG's submission, and said that there cannot be a "piecemeal hearing."Sibal said that the bench led by the then CJI Sanjiv Khanna had raised three specific issues, but did not restrict the hearing to those issues. Sibal stated that there is no such limitation imposed in the Court's limited order. SG Mehta, however, said that his reply was confined to three issues.CJI Gavai, saying that he will have to go by what is on the record, asked the submissions to be started.2025 Amendments designed to capture Waqfs : SibalSibal started his arguments by saying that the 2025 amendments are designed to "capture waqfs through a process which is non-judicial." He took objection to the provision empowering a Government Officer to decide disputes whether Waqf properties have encroached on Government land. Till the dispute is decided, the property loses its character as a Waqf property."The government decides its own procedure, anybody can create disputes. This is one aspect," Sibal said.Next, he said that the amendments nullified the principle "once a Waqf, always a Waqf."Responding to the queries from the bench, Sibal said that under the previous law, non-registration did not affect the validity of the Waqfs and the only consequence was that the Muttawalli would have to pay some penalty. However, the 2025 amendment makes a complete departure to state that if there was no registration, the Waqf will no longer be recognised.The bench recorded the submission as follows :"From 1913 to 2023, though there was provision for registration of Waqf, no consequences were provided for non-compliance except removal of the Muttawalli."As regards Waqf-by-user, Sibal said that registration was necessary after 1954. However, non-registration did not affect the character of the land as Waqf. Also, for registration of Waqf-by-user, the details of the creator must be given, which is not possible for many ancient properties. If the details of the creator are not given, the Muttawalli is liable to face imprisonment up to six months.Next, Sibal said that if a Waqf property was declared as a protected ancient monument under the AMASR Act, that did not affect the ownership or use of the property as a Waqf. He cited the example of the Delhi Jama Masjid, though notified as a protected area, can be used as a Waqf. However, the 2025 Amendment (Section 3D) invalidates Waqf declarations of protected monuments, he contended. This is a violation of the fundamental rights under Articles 14, 25 and 26.The condition in the 2025 Amendment (Section 3(1)(r)) that only a person practising Islam for 5 years can create a Waqf was challenged as "per se unconstitutional." Section 3E, which invalidates Waqfs created over scheduled tribe areas, was next flagged by Sibal, as it affected the fundamental rights of Muslims who belong to Scheduled Tribes.Sibal next flagged the provisions allowing the nomination of non-Muslims to the Central Waqf Council and the State Waqf Boards. "Earlier, the Board members were elected and they were fully Muslims. Now they are all nominated. There will be 11 members, and 7 can be non-Muslims. This is violative of Articles 25 and 26. Management has to be done by the community," Sibal said. Even in the Central Waqf Council, as per the amendment, non-Muslims can be in the majority, Sibal said. However, the bench disagreed with this interpretation and said that only a maximum of two non-Muslims can be nominated, apart from the ex-officio members. "Even two is too many," Sibal said, pointing out that in none of the laws relating to Hindu endowments,...

'Need To Show Strong Case For Interim Order' : Supreme Court Hears Petitioners' Arguments To Stay Waqf Amendment Act 2025

Gursimran Kaur Bakshi

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