SC expresses serious reservations over key provisions in new Waqf legislation

In a hearing marked by sharp observations and constitutional introspection, the Supreme Court on April 16 signaled the possibility of staying critical provisions of the Waqf Act, 2025 — particularly those related to waqf-by-user, the inclusion of non-Muslims on waqf boards, and the sweeping authority granted to district collectors over waqf land.

A bench led by Chief Justice of India Sanjiv Khanna, along with Justices P V Sanjay Kumar and K V Viswanathan, noted the potential for “huge consequences” if these controversial provisions remain unchallenged, and called the case an “exception” to the general rule against halting legislation at an early stage of judicial review.

“We do not stay legislation normally at this stage of the challenge unless in exceptional circumstances. This appears to be an exception,” CJI Khanna remarked, particularly flagging the ambiguity around the waqf-by-user clause.

Waqf-by-user at core of the debate

Under the now-contested provision, the concept of waqf-by-user — wherein land historically used for Muslim religious or charitable purposes is considered waqf even without registration—has been eliminated. Critics say this could endanger the status of nearly half of the estimated eight lakh waqf properties across the country.

Senior advocate Abhishek Manu Singhvi, appearing for the petitioners, argued that “roughly 4 lakh” such waqfs may now be rendered “non-existent by one stroke of the pen.” He also cited the Supreme Court’s own Ayodhya judgment, which had acknowledged the historical validity of waqf-by-user.

CJI Khanna appeared sympathetic, stating, “There is genuine waqf-by-user also. You can’t say there is no genuine waqf-by-user either.”

Solicitor General Tushar Mehta, defending the law, contended that since 1923, all waqf properties — including those under waqf-by-user — were required by law to be registered. “You cannot have an unregistered waqf,” Mehta asserted.

Concerns over collector's powers

Another flashpoint in the hearing was the new provision granting collectors the power to declare waqf land as government property, effectively stripping its religious designation unless a court rules otherwise.

The bench took issue with the vague phrasing of the statute. “What do you mean by the term ‘is in dispute’? It doesn’t say it’s before a court or otherwise in dispute,” said Justice Khanna. He also questioned how ancient religious sites could be expected to provide registered documentation, noting that many mosques date back to the 14th to 17th centuries.

While Mehta maintained that nothing had stopped waqf managers from registering properties after 1923, CJI Khanna suggested a more nuanced view was necessary, adding that while the collector may conduct inquiries, the impact of such determinations could be kept in abeyance.

Next steps and broader concerns

Just as the bench was poised to dictate an interim order, SG Mehta requested more time to respond, prompting the Court to adjourn the matter until April 17 at 3 PM. The bench also indicated it may consider whether the matter should continue before the Supreme Court or be referred to a High Court.

The courtroom drama concluded with CJI Khanna expressing concern over recent violence in West Bengal, describing the developments as “disturbing.” SG Mehta added a pointed observation on attempts to “pressurize the system.”

Meanwhile, senior advocate Kapil Sibal, representing another set of petitioners, described the 2025 amendments as “a parliamentary usurpation of the faith of 200 million citizens.”