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The matter was earlier heard on April 16 and 17 in detail. On April 16, Sibal led the petitioners side and raised various concerns over the 2025 Act, including the omission of ‘waqf by user’ provision. He argued that it was impossible to prove registration documents for centuries-old mosques and dargahs, which were mostly waqf by user.
Leading the submissions on the opposite side, SG Mehta apprised the Bench that ‘waqf by user’ provision was prospective, something which was assured in Parliament also by Union Minister Kiren Rijiju.
Former CJI Khanna asked SG whether the waqf by users’ properties would be affected or not. The SG replied that if the properties were registered, they would remain as waqf.
Concerns were also raised regarding the inclusion of non-Muslim members in the Central Waqf Council and the State Waqf Boards. Former CJI Khanna asked SG Mehta whether Muslims would be included in the Boards governing the Hindu religious endowments.
At the end of the hearing, the top court of the country proposed interim directions that no properties declared by the courts as waqf should be denotified. It also proposed that all members of the Waqf Boards and Central Waqf Council must be Muslims, except the ex-officio members.
The Bench passed the interim directions, so that no drastic change could take place during the hearing.
After SG Mehta sought more time, the matter was listed for April 17. The SG stated on April 17 that the existing waqf lands would not be affected and no appointments would be made to the Central Waqf Council and the State Waqf Boards.
The Court took the SG’s statement on record and listed the matter for May 5 for preliminary objections and interim directions, if any.
On May 5, the Apex Court posted the matter for hearing before a Bench led by CJI Gavai, for both interim and final matters.
The Waqf (Amendment) Act 2025, which aimed to regulate waqf properties by proposing amendments in the Waqf Act, 1995, came into effect on April 8, following a notification issued by the Ministry of Minority Affairs under Section 1(2) of the Act.
Waqf refers to properties dedicated exclusively for religious or charitable purposes under the Islamic law. The Waqf Act, 1995, was enacted to govern the administration of waqf properties (religious endowments) in India.
It provided for the power and functions of the Waqf Council, State Waqf Boards, the Chief Executive Officer, and the mutawalli. The Act further spoke about the power and restrictions of Waqf Tribunals, which act in lieu of a civil court under its jurisdiction.
The Waqf (Amendment) Act, 2025, renamed the 1995 Act to the Unified Waqf Management, Empowerment, Efficiency and Development Act, reflecting its broader objective to improve the management and efficiency of Waqf boards and properties.
While the 1995 Act allowed waqf to be formed by declaration, long-term use, or endowment, the Waqf Amendment Act 2025 stated that only a person practicing Islam for at least five years may declare a waqf.
It clarified that the person must own the property being declared. It removed waqf by user, where properties could be deemed as waqf based solely on prolonged use for religious purposes. It also added that waqf-alal-aulad must not result in the denial of inheritance rights to the donor’s heir, including women heirs.
The 2025 Amendment removed the provision in the 1995 Act, which empowered the Waqf Board to inquire and determine if a property was waqf.
It provided that two members of the Central Waqf Council, set up to advise the Central and State governments and waqf boards, must be non-Muslims. Members of Parliament, former judges, and eminent persons appointed to the Council as per the Act need not be Muslims. Representatives of Muslim organisations, scholars in Islamic law and chairpersons of Waqf Boards must be Muslims. Of the Muslim members, two must be women.
The 2025 Act empowered the Central government to make rules regarding the registration and publication of accounts of waqf, along with the publication of proceedings of Waqf Boards.
As per the latest Amendment, state governments can get the accounts of Waqfs audited at any point. It has empowered the Central government to get these audited by the CAG or a designated officer.
Several petitions have been filed in the Apex Court challenging the constitutional validity of the Act.
These include Congress party whip in the Lok Sabha Mohammad Jawed, All India Majlis-e-Ittehadul Muslimeen (AIMIM) Member of Parliament Asaduddin Owaisi, Aam Aadmi Party (AAP) MLA and chairman of the Delhi Waqf Board Amanatullah Khan, the Indian Union Muslim League (IUML), the Social Democratic Party of India (SDPI), and the All India Muslim Personal Law Board.
The petitioners further include the Samastha Kerala Jem Iyyathul Ulema (a body of Sunni scholars), the Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, the Communist Party of India, and the Dravida Munnetra Kazhagam (DMK).
Trinamool Congress leader Mahua Moitra also filed a petition challenging the Waqf (Amendment) Act, 2025, alleging that Parliamentary rules and practices were violated during the law-making process, contributing to the unconstitutionality of the 2025 Act.
This was the first petition among the many filed so far against the Waqf Acts, which claimed that the Chairperson of the Joint Parliamentary Committee (JPC) flouted the parliamentary rules and practices, both at the stage of consideration and adoption of the draft report of JPC on the Bill, and at the stage of presentation of the said report before the Parliament.
The All India Association of Jurists (AIAJ), a community of lawyers, former judges and law enthusiasts, became the first among the legal fraternity, to challenge the 2025 Act before the Apex Court. The plea termed the Act ‘unconstitutional’ and sought the striking down of the law.
The petitioners have majorly challenged the omission of ‘waqf by user’ provision, limiting the inclusion of women members to two in the Council and Boards, pre-condition of 5 years as practising Muslim for create of waqf, and inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board.
They have also challenged the diluting of waqf-alal-aulad, renaming ‘Waqf Act, 1995 to “Unifed Waqf Management, Empowerment, Efficiency and Development,” appeal against the Tribunal’s order, allowing Government to disputes regarding encroachment of government property, application of Limitation Act to Waqf Act, invalidating Waqf created over ASI protected monuments, and restrictions on creating Waqfs over scheduled areas.
The Hindu Sena became the first petitioner to move the Apex Court supporting the Waqf (Amendment) Act 2025. It said in its plea that the Act amended the ‘draconian’ nature of earlier provisions provided in the 1995 Act.
Besides, six Bhartiya Janta Party-ruled States have filed intervention applications in the Apex Court, supporting the amendment. The petitions filed by the States of Maharashtra, Haryana, Madhya Pradesh, Rajasthan, Assam and Chhattisgarh highlighted how they would be affected, in case the constitutional validity of the 2025 Act was to be tinkered with.
This article first appeared on India Legal
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