Waqfs Declared By Courts Shouldn't Be Affected : Supreme Court Proposes To Pass Interim Order On Waqf Amendment Act Challenge

While hearing a batch of petitions challenging the Waqf (Amendment) Act 2025, the Supreme Court on Wednesday proposed to pass an interim order with the following directions :1. 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 matter.2. The proviso of the Amendment Act, as per which a Waqf property will not be treated as a Waqf while the Collector is conducting an inquiry on whether the property is a Government land, will not be given effect to.3. All Members of the Waqf Boards and Central Waqf Council must be Muslims, except the ex-officio members.The Court will hear the parties tomorrow at 2 PM on the aspect of interim order.CJI Sanjiv Khanna said : "Our interim order will balance out equities. 1. We will say that whichever properties have been declared by the court to be waqf or held to be waqf will not be de-notified as waqfs or be treated as non-waqf properties, whether they are by waqf- by-user or waqf-by-declaration or otherwise...declared by Courts or otherwise also... 2. Collector can continue with the proceedings, but the proviso will not be given effect to. If he wants he can move an application before this Court and we can modify. 3. As far as the constitution of the board and council are concerned, ex officio members can be appointed, regardless of their faith, but the other members should be Muslims."While CJI Khanna acknowledged that the general rule was against staying statutes, this case had an exceptional feature. "The exception which we feel in this case is this - once there is already a waqf-by-user, if it is to be denotified, it will have huge consequences." Regarding the inclusion of non-Muslim members, CJI noted that the Solicitor General himself admitted that the present membership of the Waqf Boards will continue till the end of their tenure. Also, the Central Waqf Council is not in existence now.Although CJI Khanna was about to dictate the order, following the fervent requests by the Solicitor General of India and counsel for other respondents for a hearing before the interim order, the Court posted the matter tomorrow.A bench comprising Chief Justice of India Sanjiv Khanna, Justice Sanjay Kumar and KV Viswanathan, which heard the matter for over two hours today, raised specific concerns about some of the provisions as follows :1. Whether all waqf-by-user properties have ceased to exist as waqf?2. How can waqf-by-user properties, existing for many centuries, be asked to register? CJI gave the example of the Jama Masjid in Delhi.3. Is it fair to say that a property won't be regarded as a Waqf till the Government's authorised officer completes the enquiry into the dispute whether it is a government property?4. How can Section 2A proviso override the Court's judgments which declare properties to be Waqf?5. Whether after the new amendments, the majority of the members of the Central Waqf Council and the State Waqf Boards will be Muslims?The Court also proposed to transfer to the Supreme Court the petitions from High Courts which challenge the Waqf Act 1995 for being heard together.Court room exchangeAs soon as the hearing commenced, CJI Khanna said, "Two aspects we want to ask- whether we should entertain the writ petitions or relegate to the High Court. Second, what are the points you want to argue? The second aspect may help us decide the first issue."Since there were many petitioners involved, CJI said that he would call out the names of the lawyers to argue to maintain decorum. Senior Advocate Kapil Sibal, began the submissions for the petitioners and summarised the argument as follows: "Through a Parliamentary Act, interference is made on the essential and integral parts of the faith. Many of these provisions violate Article 26 of the Constitution." He then referred to Section 3(r) of the Act (as amended), which introduces a condition that a person should establish that he was following Islam for at least 5 years to create a Waqf and that there was no "contrivance" in the dedication of the property. "If I want to set up waqf, I have to show the State I am practising Islam for 5 years. If I am born Muslim, why would I do that? Will the State decide how good or bad a Muslim I am? My personal law will apply." He also flagged the omission of 'waqf-by-user'. "Who are you to say there can't be a waqf-by-user?," Sibal asked.He then flagged Section 3A (on Waqf-Al-Aulad). "Who is the State is to decide how the inheritance should happen?" Sibal asked. CJI Khanna then pointed out that as regards Hindus, the Parliament has enacted the Hindu Succession Act. "Article 26 does not bar the legislature from enacting laws. 26 is universal, secular, applies across all communities. Hindu Succession Act, Hindu Guardianship Act, etc, have been enacted," CJI Khanna said. Sibal said that inheritance applies only after the death of the person, and here, the State was interfering with the aspect...

Waqfs Declared By Courts Shouldn't Be Affected : Supreme Court Proposes To Pass Interim Order On Waqf Amendment Act Challenge

Gursimran Kaur Bakshi

"If you are going to denotify waqf-by-user properties, it will be an issue," CJI Khanna said.

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