The Union Government’s arguments against any temporary stay of the Waqf Amendment Act 2025 were considered by the Supreme Court for more than three hours yesterday (May 21).
Justice AG Masih and Chief Justice BR Gavai of the Indian Supreme Court presided over the hearing.
Here’s a summary from the Solicitor General’s arguments:
The Solicitor General of India, Tushar Mehta, strongly defended the Waqf Amendment Act, stating it was passed after “detailed deliberations by the Joint Parliamentary Committee which took views of various stakeholders across the country.” Regarding the controversial Section 3C, Mehta clarified: “The only consequence is revenue records will be corrected…The argument that this provision allows wholesale takeover of waqf is misleading. The Designated Officer is not making final determination – only updating records.”
He emphasized that “if the government wants ownership, it will have to file a suit for title,” assuring the Court that “possession cannot be taken over by Section 3(C)” without judicial determination.
On the registration requirements, Mehta countered petitioners’ objections by noting: “Now it is not open for anyone to say Waqf need not be registered,” pointing to mandatory provisions since 1923. He dismissed claims about age-old Waqfs lacking documentation as a “false narrative,” stating the law only requires “knowledge about the origin.” Regarding Waqf-by-user abolition, he argued: “There cannot be any mechanism just because someone gets up and says there is waqf till 2024 and not registered. It will be like legitimising what was punitive for 102 years.”
Mehta firmly stated “Waqf is not an essential part of Islam…it is nothing but just charity,” distinguishing it from core religious practices. On Waqf Boards’ composition, he maintained: “Waqf Board discharges only secular function…Managing properties, register maintenance, and auditing accounts. Purely secular,” justifying non-Muslim participation. He rejected comparisons with Hindu endowments as “by principle bad,” citing Supreme Court precedent Pannalal Bansilal Pitti & Ors. Etc vs State Of Andhra Pradesh.
. For Sections 3D and 3E, Mehta clarified these protect monuments and tribal lands, calling challenges “academic” since “no Scheduled Tribe member was before the Court.”
Key arguments in brief:
“Revenue records will be corrected, but title decided by courts” (Section 3C)
“Waqf-by-user abolition prevents mischief” while protecting registered Waqfs
“Boards perform secular functions” allowing limited non-Muslim members
“Sections 3D/3E safeguard heritage and tribal rights” with parliamentary approval
The hearing continues with these foundational defenses from the Union.
Context of the case & Common challenging provision in all petition
Five states governed by the BJP—Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana, and Maharashtra—have submitted applications for intervention in support of the legislation. Recently, the State of Kerala has filed an intervention in favour of the 2025 Amendment.
AIMIM Member of Parliament Asaduddin Owaisi, Delhi AAP Member of the Legislative Assembly Amanatullah Khan, the Association for the Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, and Samastha Kerala. The petitioners include Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, TMC MP Mahua Moitra, the Indian Union Muslim League, the All India Muslim Personal Law Board, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, the Communist Party of India, DMK, among others.
The challenge includes the omission of the ‘waqf by user’ provision, the inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board, the limitation of women members to two in these bodies, a prerequisite of five years as a practicing Muslim for the creation of waqf, the dilution of waqf-alal-aulad, the renaming of the ‘Waqf Act, 1995’ to “Unified Waqf Management, Empowerment, Efficiency and Development,” appeals against Tribunal orders, allowing government disputes regarding encroachments on government property, the application of the Limitation Act to the Waqf Act, invalidation of waqf created over ASI protected monuments, and restrictions on creating waqfs over scheduled areas, among other provisions.
What events have transpired up to this point?
The Waqf Amendment Act matter underwent detailed hearings before a three-judge bench on April 16-17, 2025. Senior Advocate Kapil Sibal, representing petitioners, contended that the abolition of ‘waqf by user’ would disproportionately affect centuries-old Islamic institutions lacking formal documentation, stating it was “impossible to prove registration” for such historical sites. Solicitor General Tushar Mehta countered that the provision operated prospectively, assuring the Court – as Union Minister Kiren Rijiju had in Parliament – that properly registered properties would retain waqf status.
Notable judicial intervention occurred when former CJI Khanna questioned the inclusion of non-Muslim members in Waqf governance bodies, pointedly asking whether reciprocal representation would apply to Hindu endowment boards. The bench proposed interim measures to maintain status quo: prohibiting denotification of court-recognized waqf properties and restricting non-Muslim membership to ex-officio positions in administrative bodies. These suggestions aimed to prevent “drastic changes” during litigation. Following SG Mehta’s request for additional time, April 17’s hearing yielded a formal undertaking that existing waqf lands would remain unaffected and no new appointments would be made to Waqf governance institutions. The Court recorded these assurances and scheduled further proceedings for May 5 to address preliminary objections and potential interim directions.
Key Developments:
- Prospective application: Only unregistered future claims affected by ‘waqf by user’ abolition
- Documentation concerns: Acknowledged challenges for historic Islamic institutions
- Governance safeguards: Interim proposals to preserve Muslim majority in Waqf administration
- Status quo assurance: Government commitment against disturbing existing waqf properties
Concise overview of petitioners’ claims
Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, Rajeev Dhavan, CU Singh, Huzefa Ahmadi, and Nizam Pasha, May 20, 2025, on behalf of the petitioners.
According to Sibal, the amendment is an effort to “capture waqfs through a process which is non-judicial,” according to his joint reading of the 2025 Act. On the other hand, Singhvi disputed the Central Government’s assertion that the number of waqf properties has increased exponentially since 2013. The “exponential” growth, he said, is attributable to the Waqf portal update.
As Sibal has previously noted, registration has been mandatory since 1954 and in all Acts that followed; yet, failure to register has never had any effect on the waqf’s character. The sole punishment, he had warned, would be a fine and six months in jail for the Muttawalli in charge of registration. Singh also emphasised this.
Another mystery that arose yesterday was the question of whether or not all waqfs that are protected monuments under other statutes, such as the Places of Worship Act, would lose their protection status due to Section 3(D), which nullifies the waqf declaration of protected monuments.
Muslims’ trusts are exempt from the Waqf Act, according to a caveat that Dr. Dhavan had pointed out in Section 3(A). The removal of Section 108 pertaining to evacuee property and the implementation of the Limitation Act in accordance with Section 107 were both mentioned by Ahmadi.