Facts
Many writ petitions have questioned the constitutionality of the Waqf (Amendment) Act, 2025 changing provisions of the Waqf Act, 1995. The petitioners asserted that provisions in the Act violated Articles 14, 15, 19, 21, 25, 26, 29, 30, and Article 300A. The most controversial provisions in the Waqf (Amendment) Act were sections 3(r), 3C, 3D, 3E, 9, 14, 23, 36, 104, 107 and 108. These provisions mandated the register of all Waqfs, changed the constitution of the Waqf Boards and Councils, recognized Waqf by user, did not allow for application to Tribal lands and did not allow remedies in Court for Waqf which was not registered.
Issues
- Whether deletion of “Waqf by user” and mandating registration of Waqf violate the fundamental rights under Articles 14, 15,25, 26.
- Whether the provisions barring claims on Waqf against the Government, against Tribal lands are arbitrary and discriminatory.
- Whether it violates a right of the Muslim community for including non-Muslims on Waqf Boards and councils.
- Whether limitations on existing Waqfs or Waqfs created after the enactment of the Waqf Amendment Act violated fundamental rights.
- Whether the Court should grant interim relief where they stay the operation of the offending Act.
Legal provisions
- Constitution of India – Articles 14, 15, 19, 21, 25, 26, 29, 30, 300A
- Waqf Act, 1995 (as amended by the Waqf (Amendment) Act, 2025)
- Mussalman Wakf Act 1923; Waqf Act, 1954; Waqf (Amendment) Act, 1984.
- Ancient Monuments and Archaeological Sites and Remains Act, 1958.
- Limitation Act, 1963.
Arguments
- Petitioners
Senior counsels Kapil Sibal, Rajeev Dhavan, A.M. Singhvi, C.U. Singh and Huzefa Ahmadi argued that the impugned Act was designed to expropriate Waqf properties disguised as regulation. It had challenged the deletion of ‘Waqf by user’ as unconstitutional, argued that the required proof of five-year professing Islam was discriminatory, and submitted that tribal lands were not permitted to be excluded from the dedication of the Waqf. What’s more outrageous is that it contended that allowing non-Muslims to hold positions in Waqf administration amounted to a violation of Articles 25 and 26 while eliminating recourse to remedies afforded to unregistered Waqfs amounted to extinguishing rights of the community. The retrospective application of the provisions and addition of Sections 104, 107 and 108 were framed as an unconstitutional limiting of rights.
- Respondents
At the Union’s behest, Solicitor General Tushar Mehta stated that amendments were necessary to prevent abuse of the ‘Waqf by user’ which ultimately has the potential for massive encroachments, citing encroachment examples in Telangana and Andhra Pradesh. He reiterated that Waqf Councils and Boards perform secular functions, so allowing non-Muslims to participate in Waqf is acceptable. The Government’s position is that the restrictions regarding the ability to dedicate land to tribal land correspond with the protections for Scheduled Tribes (STs) in the Constitution. The compulsory registration of Waqf was appropriate to prevent fraud. Rights were preserved through the Waqf Tribunals, with the ability to appeal to the High Courts. The provisions were prospective in nature, proportional to legitimate state interests.
Analysis
The Court reaffirmed the established law that all statutes have an assumption of constitutionality and can only be struck down if there is a lack of legislative competence, or there is a breach of constitutional provisions. Citing precedents like Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41, State of Bombay v. F.N. Balsara AIR 1951 SC 318 and Dr. Jaya Thakur v. Union of India (2023) 10 SCC 276, the Court held that suspending statute pending constitutional review is an extraordinary remedy. The Court held that while there are serious constitutional issues questioning the validity of the restriction on tribal lands, the question of registration, and the issue of the ‘Waqf by user’, those issues would need to be resolved as part of a full hearing if all evidence was put forward and assessed carefully.
Judgment
The Supreme Court refused to stay the enactment of the Waqf (Amendment) Act, 2025 at the interim stage, stating that there is a presumption of validity until disproved of validity. The Court did record the Union of India’s assurance that there will be no further appointments to Waqf Boards and Councils or the de-notification of Waqfs, including Waqf by user, until final resolution. It directed the matter to be heard on a fast-track basis.
Conclusion
The case demonstrates the tension of regulating Waqf properties to prevent misuse and protecting the minority’s rights under Articles 25 and 26. While interim relief was denied, the court left open all constitutional questions for final determination. The determination ultimately will have significant ramifications for freedom of religion, minority rights, and the governance of endowed properties in India.
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For reading more please click here: IN RE THE WAQF AMENDMENT ACT, 2025 & Connected Petitions
