'Waqf Registration Required Since 1923' : Supreme Court Reserves Order On Stay Of Waqf Amendment Act 2025

The Supreme Court on Thursday (May 22) reserved interim order on the plea to stay the operation of the Waqf (Amendment) Act 2025.A bench of Chief Justice of India BR Gavai and Justice AG Masih heard the matter on the point of interim order across three days. During the arguments, CJI Gavai orally said that the requirement of registration of Waqfs has been there under the previous laws of 1923 and 1954.The petitioners had begun their arguments on May 20, which was followed by the Union's arguments on May 21.Today, Solicitor General of India Tushar Mehta started by addressing the concerns about Section 3E, which bars the creation of Waqf over lands falling under Scheduled Areas. SG said that this provision was created for the protection of Scheduled Tribes.When Chief Justice of India Gavai asked about the rationale behind this provision, SG said that the creation of Waqf is irreversible and this might prejudice the rights of the vulnerable tribal population. "JPC says tribals may follow Islam but they have their separate cultural identity," Mehta said. Justice Masih however expressed disagreement, saying, "Does not appear to be correct. Islam is Islam! Religion is the same." SG said that even if that is the case, it is not a glaring ground to stay the Act. "I am unable to go purchase the land of tribals because the state law restricts. If I create a waqf and the mutawalli does what he wants.... Please bear in mind if the provision is so atrocious that it needs to be stayed," he submitted.On the bar on non-Muslims creating WaqfsNext, Mehta addressed arguments regarding the provision barring non-Muslims from creating Waqfs. He pointed out that only in the 2013 amendment, non-Muslims were given such rights. In the 1923 law, they were not allowed, as there were concerns that this could be used as a device to defraud creditors.In any case, non-Muslims can make donations to waqfs, SG said. "If I am a Hindu, I can donate to waqf. If I am a Hindu and really want to create a waqf, I can create trust," he said.Regarding the condition of 5-year practice of Islam to create waqf, SG said that the Muslim Personal Law (Shariat Application) Act also require a person to make a declaration regarding the practice of religion. The condition of 5 years is not intended to defeat the rightful claims of any person, he claimed.SG also mentioned that earlier, when petitions challenging the Waqf Act 1995 were filed in the Supreme Court, they were asked to go to the High Courts, and those parties have raised an argument that similar treatment should be given to the petitioners challenging the 2025 Amendment Act.SG reiterated that the provisions are not "atrociously unconstitutional" so as to warrant a stay at the interim stage. Referring to P. Ramareddy v. State of Andhra Pradesh,he said that even if a provision is eventually struck down under Article 14, that does not justify granting an interim stay now.Senior Advocates Rakesh Dwivedi (for State of Rajasthan), Ranjeet Kumar (for Haryana), Maninder Singh (Odisha) also made brief submissions supporting the Amendments.Dwivedi said that the concept of 'waqf-by-user' was introduced in the Indian soil by a single sentence in a judgment of the Privy Council. Hence, it was not something rooted in Islamic theology and was only an application of adverse possession doctrine. Dwivedi also said that it was untenable to make arguments by comparing a Parliamentary law with certain State laws on Hindu religious endowments. Kumar said that in Rajasthan, a Waqf claim was made over a 500-acre land given for mining purposes. Kumar also represented a tribal organisation that supported the 2025 amendments. He criticized the now-deleted Section 40, which let the Waqf Board declare properties as waqf and force private parties to defend ownership.Rejoinder by petitionersSenior Advocate Kapil Sibal refuted SG's submission of yesterday that the proviso to Section 3C only enables the Government to change the revenue entries and that the title or the possession of the Waqf property would not be affected.Sibal said that the language of the provisions is very clear - that the property cannot be regarded as a Waqf till the designated Government officer completes enquiry on whether there is encroachment of government property. When the language of the statute is so, neither the submission of the Solicitor General nor the affidavit of the Government can change its meaning, Sibal said.Sibal also pointed out that as per the proviso to Section 3(1)(r), waqf-by-user, even if registered, will not be a waqf if there is a dispute regarding ownership or if it was a government property. The effect of this provision is that all waqf-by-user properties are de-recognized even without any determination of the dispute.Registration required since 1923, says CJI; Non-registration fault of States, says SibalAt this point, CJI BR Gavai said that the registration was not a new requirement and was mandated in previous enactments as...

'Waqf Registration Required Since 1923' : Supreme Court Reserves Order On Stay Of Waqf Amendment Act 2025

Gursimran Kaur Bakshi

Tags