India Supreme Court hints at interim order on de-notifying existing Waqf land

New Delhi: The Supreme Court on Wednesday indicated that it may pass an interim order to stay certain key provisions of the recently passed Waqf (Amendment) Act, 2025, and also expressed concern over the violence in West Bengal’s Murshidabad district.

A three-judge bench comprising Chief Justice of India Sanjiv Khanna and Justices PV Sanjay Kumar and KV Viswanathan said, “One thing that is very disturbing is the violence that is taking place. The issue is before the court and we will decide.”

While the bench did not pass any order, it suggested it may stay certain provisions, including the inclusion of non-Muslims in the Central Waqf Council and Waqf Boards, the powers of collectors to decide disputes over Waqf properties, and the provision for de-notifying properties declared as Waqf by courts.

The apex court was hearing a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025.

During the hearing, the bench said it is considering passing an interim order to balance equities.

“We will say — whichever properties were declared by court to be Waqf will not be de-notified or treated as non-Waqf, whether it is Waqf by user or not. Second, the Collector can continue with proceedings, but the proviso will not be given effect. Third, regarding Waqf Boards and Council... ex officio members can be appointed, but the other members must be Muslims,” said the bench.

Request to be heard

CJI Khanna was about to dictate the order when Solicitor General Tushar Mehta, representing the Centre, and other counsels appearing for parties defending the Act requested to be heard before the interim order was passed.

The bench then posted the matter for further hearing on Thursday at 2 pm.

During the hearing, the CJI observed that the government cannot rewrite history through the amendments to the Waqf law, referring to the scope under the new Act to de-notify properties declared as Waqf long ago.

“When a public trust is declared to be a Waqf 100 or 200 years ago... suddenly you say it is being taken over by the Waqf Board and declared otherwise,” said the bench.

The top court questioned the government on how Waqf-by-user can be disallowed, as many would not have the requisite documents to get such Waqfs registered.

CJI asked the Solicitor General, “How will the government register such Waqfs-by-user? What documents will they have? It will lead to undoing something. Yes, there is some misuse, but there are genuine ones also... If you undo it, then it will be a problem.”

No registration

“Before the British came, we did not have any registration. Many of the masjids were created in the 14th or 15th centuries. To require them to produce a registered deed is impossible. In most cases — say Jama Masjid Delhi — the Waqf will be Waqf-by-user,” CJI added.

On the issue of non-Muslim members in Waqf Boards and Councils, the bench said the closest parallel is the Hindu Charitable Endowments Act.

“Whenever it comes to Hindu endowments, it would be Hindus who would be governing,” Justice Viswanathan said.

Solicitor General Mehta said that the control would be by a Board which may consist of Hindus or non-Hindus. Justice Kumar then asked Mehta to provide an example and remarked that the Tirupati Temple Board has no non-Hindus.

Senior advocate Kapil Sibal, appearing for one of the petitioners, said that a Collector is the officer designated to decide whether a property is Waqf or not in case of dispute. This person, being part of the government, becomes a judge in his own cause.

“This is per se unconstitutional. This also says that property will not be a Waqf till the officer decides so. Only Muslims had been part of the Waqf Council and Boards, but now, after the amendment, even Hindus can be a part of it,” he contended.

People of other faiths on boards

He further said that the central law regarding Sikh Gurdwaras and many state laws on Hindu Religious Endowments do not permit the inclusion of persons of other faiths in the respective boards. “It is a parliamentary usurpation of the faith of 200 million persons,” Sibal added.

CJI asked Sibal about his objections to the provisions mandating registration. “What is wrong with it?” asked the bench.

Sibal replied that presently, Waqf-by-user can be created without registration. “You can register a Waqf, which will also help you maintain a register,” said the bench, adding that if you have a deed, there won’t be any bogus or false claims.

Senior advocate Rajeev Dhavan, representing a petitioner, said that Waqf is an essential and integral part of Islam, as charity is an essential and integral part of the faith.

Senior advocate Abhishek Manu Singhvi said that deletion of ‘Waqf-by-user’ is dangerous, as about 400,000 out of 800,000 properties are Waqf-by-user, “which have now become illegal with one stroke of the pen.”

“We have been told the Delhi High Court building is on Waqf land, the Oberoi hotel is on Waqf land. We are not saying that all Waqf-by-user properties are wrong. But there are some genuine areas of concern too,” said the CJI.

Solicitor General Tushar Mehta, appearing for the Centre, told the apex court that the law was enacted after an elaborate exercise by the JPC, which held meetings in different parts of the country and took views of stakeholders. Both houses of Parliament passed the bill after a long debate.

Several petitions were filed in the apex court challenging the Act, contending that it was discriminatory towards the Muslim community and violated their fundamental rights.

President Droupadi Murmu, on April 5, gave her assent to the Waqf (Amendment) Bill, 2025, which had earlier been passed by Parliament after heated debates in both Houses.