New Delhi: The Supreme Court Wednesday asked the Centre whether Muslims would be allowed to be part of Hindu religious trusts during the hearing of pleas challenging the constitutional validity of the Waqf (Amendment) Act, 2025.
A bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and KV Viswanathan asked Solicitor General Tushar Mehta, appearing for the Centre, on how “waqf by user” can be disallowed, as many will not have the requisite documents to get such waqfs registered.
“Waqf by user” refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn’t a formal, written declaration of waqf by the owner.
“How will you register such waqfs by the user? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have gone through Privy Council judgments. Waqf by the user is recognised. If you undo it, then it will be a problem. Legislation cannot declare a judgment, order or decree void. You can only take the basis,” the bench said.
Mehta submitted that there was a large section of Muslims who did not want to be governed by the Waqf Act.
The bench then asked Mehta, “Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards. Say it openly.”
The apex court said that when a public trust was declared to be a waqf 100 or 200 years ago, it couldn’t suddenly be taken over by the waqf board and declared otherwise.
“You cannot rewrite the past,” the bench said.
Mehta submitted that a joint parliamentary committee had 38 sittings and examined 98.2 lakh memorandums before Parliament’s both houses passed it.
CJI Khanna also said one high court could be asked to deal with the pleas.
“There are two aspects we want to ask both sides to address. Firstly, whether we should entertain or relegate it to the High Court? Secondly, point out in brief what you are really urging and wanting to argue?” We are not saying there is any bar on SC in hearing, deciding pleas against the law,” the CJI said.
Senior advocate Kapil Sibal, appearing for the petitioners, referred to the Waqf Amendment Act and said it was challenging the provision that says only Muslims could create a waqf.
“How can the state decide whether, and how, I am a Muslim or not and hence, eligible to create a waqf?” Sibal asked.
He added, “How can the government say only those who are practising Islam for the last five years can create a waqf?”
Senior advocate Abhishek Singhvi, who represented some of the petitioners, submitted that the Waqf Act would have all-India ramifications and pleas should not be referred to the high court.
Senior advocate Huzefa Ahmadi, opposing the Waqf Act, said Waqf by user was an established practice of Islam and couldn’t be taken away.
The Centre recently notified the Waqf (Amendment) Act, 2025, which got the assent of President Droupadi Murmu April 5 after its passage from Parliament following heated debates in both houses.
The bill was passed in the Rajya Sabha with 128 members voting in favour and 95 opposing it. It was cleared by the Lok Sabha with 288 members supporting it and 232 against it.
About 72 petitions, including those by AIMIM leader Asaduddin Owaisi, All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), Congress MPS Imran Pratapgarhi and Mohammad Jawed, have been filed challenging the validity of the Act.
The Centre, April 8, filed a caveat in the apex court and sought a hearing before any order was passed in the matter.
A caveat is filed by a party in the high courts and the apex court to ensure that no orders are passed without hearing it.
PTI
