Supreme Court questions Centre on whether Muslims can be part of Hindu endowments in case challenging Waqf law.

On April 16, 2025, the Supreme Court, led by Chief Justice of India (CJI) Sanjiv Khanna, questioned key provisions of the Waqf (Amendment) Act, 2025, during a hearing packed with nearly 100 petitions. The CJI, heading a three-judge Bench, referred to the recent communal unrest in West Bengal related to the Act as “very disturbing.”

The Act had removed the legal recognition of “waqf-by-user” properties — those used as waqf (Islamic charitable or religious endowments) over time without formal registration — allowed non-Muslims to be part of waqf administrative bodies, and empowered the state to decide whether a property is waqf or belongs to the government.

To strike a temporary balance between opposing sides, the Chief Justice proposed a three-part interim solution:

1. Protection for Existing Waqf Properties: Properties already recognized by courts as waqf — including those without formal documentation but long used as such — should not, for now, be removed from waqf status.
2. State Review with Restrictions: While a designated government officer may continue assessing whether a property is waqf or government-owned, the part of the law that freezes its waqf use during this review could be put on hold.
3. Non-Muslim Participation: The court considered allowing non-Muslims to serve as ex-officio members of the Central Waqf Council and Waqf Boards, as long as the rest of the members were Muslims.

However, the government requested more time before any temporary orders were issued, and the court postponed further hearings to April 17 at 2 p.m. No formal notice or interim order was passed at this stage.

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Debate Over Religious Rights and New Requirements

The petitioners challenged a clause in the 2025 Act requiring someone to prove they had been a practising Muslim for five years before donating property as waqf. They argued this violated Article 26 of the Constitution, which protects the right to manage religious and charitable institutions.

Senior advocate Kapil Sibal criticized the clause, saying, “I have to prove to the state that I’m a good Muslim.”

In response, Solicitor General Tushar Mehta argued that Muslims who wish to do charity can choose to operate outside the waqf system.

Senior advocate Rajeev Dhavan stressed that waqf is a fundamental part of Islam, and taking control away from Muslims and giving it to the state undermines religious freedom.

Justice K.V. Viswanathan questioned if it made sense for non-Muslims to manage waqf properties when Hindu endowments are typically run by Hindus. Justice Sanjay Kumar also raised concerns about the law allowing only some Waqf Board members to be Muslims, leaving room for others from different religions.

CJI Khanna further pressed the issue, asking whether the government would also permit Muslims to sit on Hindu endowment boards.

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Concerns Over Government Overreach

Mr. Mehta dismissed the claim that the Centre had taken over the Central Waqf Council, calling it “absurd” to say only Muslims should manage waqf matters. He added that if that logic held, even the judges—who may not be Muslim—shouldn’t hear the case.

CJI Khanna responded sharply: “This is adjudication. When we sit here, we lose our religion.”

Mehta clarified that only two out of 22 members on the Waqf Council would be non-Muslims and that this had already been addressed by the Joint Parliamentary Committee. He also noted that current Waqf Councils and Boards would serve their full terms.

Sibal interjected, pointing out that the Central Waqf Council had been inactive for over two years.

The CJI raised further concerns about a clause in the Act allowing authorities to temporarily suspend a property’s waqf status while awaiting a government report on its ownership.

He asked, “What happens to the rent from such properties? Who receives it during that time?”

Mehta responded that while the legal status might be on hold, the property’s use would continue.

Sibal countered, questioning how a state officer, essentially a government employee, could be allowed to decide whether a property is waqf — arguing that it creates a conflict of interest, making the official both the judge and an interested party.