New Delhi: As the petitioners, opposing Waqf (Amendment) Act, 2025, Tuesday pressed for an interim stay on the law’s operation, the Supreme Court clarified that relief will be given if the modifications in the legislation have caused “irreversible” or “irreparable” harm to them.
A bench of Chief Justice of India B.R. Gavai and Justice Augustine Masih told the petitioners that legally there is presumption of constitutionality in favor of every statute. “For interim relief you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there,” CJI Gavai said.
An interim stay will prohibit the government from implementing the law until the top court delivers its final verdict on the constitutional validity of the statute. The petitioners who have challenged the Waqf (Amendment) Act, 2025, have demanded an immediate stay of the law.
They claim if the Centre and states are allowed to proceed in accordance with the law, while their petitions are pending in the top court, their pleas would be rendered infructuous. By the time their matter gets decided many of the properties will lose the waqf status, leaving the petitions infructuous.
Senior advocate Kapil Sibal commenced the arguments on behalf of the petitioners. He made his points on all the contentious provisions, despite solicitor general Tushar Mehta urging the bench to restrict the arguments on interim stay to only three issues.
Mehta said the government had filed its written submissions only on the three issues, which were flagged by the earlier bench during a hearing on 16 April. It was thereafter that the Centre had promised not to act against any registered waqf properties, including waqf-by-user, and appoint new members either to the Central Waqf Council or state waqf boards.
Also Read: What is ‘waqf-by-user’ and why it’s at centre of debate over contentious amendments to waqf law
‘Manifestly arbitrary’: Sibal
The amendments, Sibal contended, was an attempt to capture waqf properties through a non-judicial process. “It allows creeping acquisition of waqf properties through an executive process,” he submitted, impressing upon the court for a stay.
He objected to the clause that allows someone who has been a practicing Muslim for at least five years to donate his/her property as waqf. Sibal said the provision allows a government officer to decide if a property is waqf or government land. The provision does not stipulate a timeline for the officer to submit a report on the character of land.
However, while the enquiry is pending, the land will lose its waqf character. Such a property shall not be treated as waqf. And, while the government is not required to approach any tribunal, under the new law, the person who is aggrieved by the enquiry officer’s report will have to invoke a judicial process to seek a reversal of the finding given by an executive authority.
This, he argued, is “most egregious” and inconsistent with the Article of the Constitution that promises equal treatment and equality before law.
Sibal also pointed out how the amendments give no clarity as to how one has to establish that he or she has been a practicing Muslim for five years and that there is no contrivance involved in dedicating a waqf.
The changes in the law, he argued, have ended the “once a waqf, always a waqf” principle. While under the previous regime, non-registration of waqf properties did not affect the character of the property and the only consequence was that the Mutawalli was penalized.
But the new law is a departure from the earlier practice. If a property is not registered, it would lose its recognition as a waqf.
Though the law protects registered waqf-by-user properties, the condition that details of the creator must be given is an impossible one to comply with, he said. If the details of the creator are not provided then the Muttawali is liable to be punished up to six months.
Another provision in the new law, which Sibal opposed, is invalidation of a waqf property in case it is declared a protected monument. Earlier, he said, this was not the case.
In case a waqf property was brought under the special law meant to protect ancient monuments, it did not alter the status of the said property or interfere with the rights of those who prayed there to use it.
He cited the example of the Delhi Jama Masjid, though notified as a protected area, can be used as a waqf. All these changes, Sibal contended, violated the Muslim community’s right to Articles 14 and right to worship.
The new legislation, Sibal argued, is against the fundamental theme of waqf under which an individual can dedicate one’s personal property as waqf. “Now, my property is being taken away through a legislative diktat” and by an “executive process,” which is devoid of a judicial adjudication, he said.
Insisting that there has to be a legislative rationale behind a law, Sibal also flagged how it impacted the fundamental rights of Muslims who belong to Scheduled Tribes. The law invalidates waqfs created over Scheduled Tribes areas.
He next highlighted abolition of the survey commissioner’s office who, under the previous legal regime, was given the task to survey before registering a property as waqf. It entailed a detailed survey procedure, which included putting out a list of properties identified as waqf and then their registration.
Sibal also said that a waqf property cannot be registered if it is in dispute or is a government property. This would give an opportunity to stall the registration of a property by raising a dispute. The community’s fundamental right to litigate is lost because as per the current law unregistered waqfs cannot invoke the remedies. “I cannot go anywhere and cannot file suit or proceedings. This is manifestly arbitrary.” Sibal argued.
He even pointed out that two contentious provisions—Sections 3 (D) and 3 (E) of the law were not there in the original bill. There was no circulation and no discussion on them either before the Joint Parliamentary Committee or in Parliament. There was no proposal in the JPC report that these two sections would be part of the new law, nor were the provisions mentioned in the proposed Bill which was circulated to the MPs.
However, special powers were invoked to add these two sections when the Bill was introduced in Parliament.
Section 3 (D) says: “Any declaration or notification issued under this Act or under any previous Act in respect of waqf properties shall be void, if such property was a protected monument or protected area under the Ancient Monuments.”
Section 3 (E) invalidates waqf properties in Scheduled Tribes-dominated areas.
Sibal described this as a disturbing feature, even though he accepted that malafide cannot be a basis to question a law’s validity.
(Edited by Amrtansh Arora)
Also Read: 1995 Waqf Act balanced Islamic principles and Indian law. Amendment Bill shifts the scales
Kapil Sibal is forever willing to bat on behalf of evil. He is the type of lawyer because of whom the entire legal fraternity is held in contempt and disdain by the common man. He exemplifies everything that is wrong with the legal profession.