The Supreme Court on Wednesday indicated a possible stay on contentious provisions of the Waqf (Amendment) Act, 2025, questioning the legal and constitutional coherence of recent legislative changes introduced by the Central Government. A Bench comprising Chief Justice of India Sanjiv Khanna, Justice PV Sanjay Kumar and Justice KV Viswanathan reserved an interim order for Thursday, following extensive arguments advanced by senior advocates for and against the statutory amendments.
The Bench expressed grave reservations over the amended provisions, particularly those enabling the Central Waqf Council and State Waqf Boards to include non-Muslim members, and allowing retrospective denotification of properties previously declared as waqf by operation of law or judicial recognition.
A central point of deliberation was the government’s decision to allow non-Muslims to be appointed to Waqf Boards and the Central Waqf Council. During the course of arguments, Solicitor General Tushar Mehta defended the move as a limited measure that preserved the overall Muslim-majority character of these statutory bodies. However, the Court was unconvinced by the logic presented.
In a sharp exchange, CJI Khanna addressed the SG directly: "Mr Mehta, are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards. Say it openly!"
The Chief Justice rejected the premise that the religious identity of the judges should bear upon their jurisdiction to adjudicate the matter, reacting strongly to the SG’s analogy:
"What! When we sit over here. We lose our religion. For us both sides are the same. How can you compare it with the judges? Why not have non Muslims also in the advisory board of Hindu endowments then."
Another clause under judicial scrutiny was the power granted under the amended Act to denotify waqf properties, many of which may have been recognized as such for centuries. The Court raised fundamental concerns about the feasibility and legality of reversing long-standing waqf declarations without historical or documentary evidence that meets current statutory standards.
The CJI remarked: "When a public trust is declared to be a Waqf 100 or 200 years ago.. suddenly you say it is being taken over by the Waqf board and declared otherwise."
Referring to pre-colonial practices and the absence of codified property laws prior to British rule, the Bench questioned the practical implementation of these provisions: "The issue is with government property. Before British came, we did not have any registration or Transfer of Property Act. Many masjids will be in 14th or 15th century... Suppose Jama Masjid."
Further judicial interrogation was directed at the powers now vested in District Collectors under the amended statute. The Bench appeared concerned that executive determination by revenue officers may compromise the religious and trust-based character of waqf property.
The Court asked: "Is that fair? The moment collector starts deciding it, it stops being Waqf! Is it fair?"
The Court signaled its intent to issue an interim stay on select provisions of the Waqf (Amendment) Act, 2025, pending comprehensive adjudication. The Central Government, however, opposed the grant of interim relief and urged a full hearing before any order affecting statutory provisions was passed.
The matter will next be heard on Thursday, when the Court is expected to issue directions with respect to the interim prayer.
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