'When We Sit On Bench, We Lose Our Religion' : CJI Refutes Argument That Non-Muslim Judges Can't Hear Waqf Amendment Act Challenge

Today, while the Supreme Court was hearing on the constitutionality of the Waqf (Amendment) Act, 2025, a submission from Solicitor General Tushar Mehta related to the inclusion of non-Muslims in Central Waqf Council and the State Waqf Boards drew a sharp response from the Court.

A bench comprising CJI, Justice Sanjay Kumar and KV Viswanathan was hearing the petitions challenging the 2025 Act.  

During the hearing, the CJI questioned the provisions of the Amendment Act (Sections 9 and 14) allowing the nomination of non-Muslims in the Central Waqf Council and the State Waqf Boards. The CJI asked if Muslims could be included in the Boards governing Hindu religious endowments. 

CJI asked: "Mr Tushar Mehta, are you arguing that as far as the Hindu endowments or Hindu religious bodies are concerned, you will allow minorities, including Muslims to be a member of the Board or Council? Please say that very openly."

The Solicitor General referred to the provisions and said that only two non-Muslims can be included and the majority would still be Muslim members in the Boards and the Councils. The SG also said that if the objection to the presence of non-Muslims in the statutory board is accepted, then the present Bench also would not be able to hear the matter.

"Then, your Lordships cannot hear this matter if we go by that logic," SG said.

This statement drew remarks from CJI Sanjiv Khanna: "No, sorry Mr. Mehta we are not talking just about adjudication. When we sit over here, we lose our religion, we are absolutely secular. For us, one side or the other side is the same. But then, when we are dealing with a Council looking after the religious affairs, issues may arise. Let's say, in a Hindu temple tomorrow, a receiver is to be appointed or there is an endowment trust ...all of them have Hindu are members of that Governing Board...How are you comparing it with judges, saying judges should be from different communities or background."

Mehta clarified that he was not intending to suggest that judges should be from different backgrounds. He added that this is an advisory board. 

CJI suggested that if this is an advisory board, why not have majority of Muslim members then. Mehta also referred to the report of the Joint Parliamentary Committee and stated that it was clarified by the Committee that, excluding the ex-officio members, the maximum number of non-Muslims would be two.

"Out of 22, only two would be non-Muslims," Mehta submitted.

CJI asked if Mehta is ready to make a statement on composition. Justice Kumar remarked that Mehta's interpretation was different from what the written law says. 

"Are you ready to make that statement?," CJI.

Mehta undertook to file an affidavit stating that the number of non-Muslims in the Boards/Council would be two.