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The Supreme Court on Tuesday heard intense arguments challenging the constitutional validity of the Waqf Amendment Act, 2025, with senior advocates Kapil Sibal, Rajeev Dhavan, Abhishek Manu Singhvi, CU Singh, and others asserting that the new law interferes with core religious practices of Islam and threatens long-standing waqf properties.
A three-judge bench comprising Chief Justice of India Sanjiv Khanna, Justice Sanjay Kumar, and Justice KV Viswanathan is currently hearing a series of petitions challenging various provisions of the amended law. At the heart of the dispute is the concept of “waqf by user”—a long-recognized Islamic tradition where property, even without a formal deed, is treated as waqf if it has been used for religious or charitable purposes over a significant period.
“Legislation Interferes with Essential Religious Practices”: Sibal
Senior Advocate Kapil Sibal, opening the arguments for the petitioners, told the court, “My submission upfront is that what is sought through parliamentary legislation is to interfere with an essential and integral part of faith,” referring to Articles 25 and 26 of the Constitution, which guarantee religious freedom.
Reading out Section 3(r) of the new Act—the clause defining waqf—Sibal objected to the requirement that a person must have been practicing Islam for five years to create a waqf.
“If I am born Muslim, why would I do that? My personal law will apply,” he argued.
He also raised objections to the proviso in Section 3, which says that existing waqfs by user will continue only if not under dispute or if they’re not government property.
“This is unconstitutional,” he said, adding, “They are interfering with waqf even before inheritance takes place. In Islam, inheritance happens after death.”
Disputed Provisions Cited One by One
Kapil Sibal then systematically laid out what he termed were the most problematic sections of the law:
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Section 3(A)(2): Prevents waqf-alal-aulad (family waqf) from denying inheritance rights to women. Sibal asked, “Who is the State to say about this?”
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Section 3(C): Declares that government properties, even if used as waqf, won’t be considered waqf after the Act’s commencement.
“There is no time limit for the government to make this declaration,” Sibal said, calling it arbitrary. -
Section 3(E): He pointed to a chart showing many Muslims being grouped under Scheduled Tribes in official waqf records, questioning the government’s classification system.
He also highlighted that the Central Waqf Council, originally composed of only Muslim members, now includes non-Muslims, unlike Hindu or Sikh religious endowments that have only members of their own community. “It is a parliamentary usurpation of 200 million,” he declared.
Judges React: “Protected Monuments Can’t Be Declared Waqf”
CJI Khanna responded to concerns about historic sites being taken over “Protected monuments cannot be waqf assets. The law shields ancient structures like Jama Masjid and other old mosques,” he said, assuring the court that pre-existing waqfs would not be affected as long as they were declared before such sites became protected monuments.
Justice Viswanathan emphasized the difference between secular and religious property, “Don’t mix the two. Properties can be secular. Only the administration may fall under religious heads.”
“Section 14 Is a Complete Takeover”: More Objections from Petitioners
Sibal went on to slam Section 14, calling it “a complete takeover through nomination” of Waqf Boards.
He also raised concerns about the requirement of registration, particularly for waqfs created through usage over generations “They will say, if a waqf was created 3000 years ago, they will ask for a deed,” he said.
He warned that Section 7(A) requires these to be revalidated within two years, a near-impossible task for many unregistered waqfs. “Previously, there was no limitation. Many waqf properties were encroached upon. Now how will I claim them?”
“Charity Is Integral to Islam”: Dhavan, Singhvi, and Others Join In
Senior Advocate Rajeev Dhavan backed Sibal’s core argument, saying, “Waqf is essential and integral to Islam. Religion, particularly charity, is an essential and integral part of Islam.”
Abhishek Manu Singhvi pointed out that “4 out of 8 lakh waqf properties are created by user. With one stroke of the pen, they are being erased.”
He cited the Ayodhya judgment, which recognized waqf by user as an old and valid concept.
“Can you remove the basis of that judgment now?” he asked.
Government Defends Law as Consultative, Balanced
Solicitor General Tushar Mehta, representing the center, pushed back, saying that the law was not arbitrary.
“A Joint Parliamentary Committee (JPC) held 38 sittings, visited major cities, and received 29 lakh suggestions,” he said.
Mehta stressed that waqf by user was already subject to registration laws from as far back as 1923, reiterated in 1995, and the new law simply formalizes that.
When asked by CJI Khanna whether existing waqfs by user would now become void, Mehta replied:
“If registered, they will remain as waqf. Only unregistered properties under dispute may not.”
He added that there has to be a waqif (donor) who officially settles the trust, and that trust administration needs legal clarity and proper records.
CJI Summarizes Core Concern: Status of Waqf by User
The court repeatedly returned to the crux, What happens to longstanding waqf properties created by users if they were not formally registered?
CJI Khanna posed a direct question, “Let us be clear—waqf by user is accepted prior to 1925. Will it now be declared void, or does it continue to subsist?”
Mehta replied that only registered waqfs will continue, but CJI warned, “Be careful with your statement.”
Petitioners Warn of Long-Term Damage
Advocate CU Singh argued that Article 26, unlike Article 25, deals with administration and charity, not just religious practices. He said that the law clearly interferes with administration of religious property, which the Constitution forbids without justification.
Advocate Huzefa Ahmadi echoed similar concerns, “The expression ‘practicing Islam’ in Section 3(r) has the effect of suspending fundamental rights for five years. There’s vagueness. Are they going to tell me I’m not a Muslim because I don’t pray five times a day?”
