SC told Solicitor General of India Tushar Mehta that as far as Waqf-by-user is concerned, it’s difficult to register. You have a point; it is misused, but you cannot say there is no genuine Waqf by the user. CJI asks the Solicitor General how the government will register such ‘Waqfs-by-user’.
During the hearing of pleas challenging the constitutional validity of the Waqf Amendment Act, 2025 on Wednesday (April 16), the Supreme Court of India today asked the Central government whether Muslims will be allowed to be part of Hindu religious ‘trusts’. A bench of Chief Justice of India (CJI) Sanjiv Khanna and Justices Sanjay Kumar and KV Viswanathan asked Solicitor General Tushar Mehta, appearing for the Centre, on how ‘waqf by user’ can be disallowed, as many will not have the requisite documents to get such waqfs registered.
As per details, no interim order has been passed, and the Supreme Court will hear this matter on Thursday (April 17) at 2:00 pm after a request from the respondents. Also, no notice has been issued in this regard.
Who said what inside the court? | Check full details here
CJI Sanjiv Khanna: We made it very clear who has filed the petitions and removed objections before 11:00 am on Wednesday (April 16), we will hear. Even in Hindu, the State has enacted the law. Parliament has enacted law for Muslims also. All ancient monuments, including Jama Masjid will remain protected. The legislature cannot declare any judgment or decree of court as void, you can remove the basis of law but you cannot declare any judgment or declare as not binding. Normally, two rules apply. courts do not pass interim order, except in exception. our concern is if waqf by user is denotified, there will be huge consequences. One thing is very disturbing: the ‘violence’. The issue is before the Court, and we will decide.
Solicitor General of India Tushar Mehta: What is presented is not correct statutory scheme. I am Hindu, I create trust, I say all trustee will be Hindu. administration will be with charity commissioner. In Islamic law, it is dedicated to Allah for charitable purpose. there has to be a waqif who settles the trust, he would say it will be governed by Mutawali. Right by 1923, registration of waqf is mandatory- statutorily. even waqf by user cannot be unregistered. It was followed in 1995, where also, the waqf registration is mandatory. Mr Sibal points Mutawali will go to jail, he is going to jail since 1995. I don’t know why those words have come. Ignore that part. There is a large section of Muslims who dont; want to be governed by Muslim Board. If a Muslim wants to do charity, he can do that through a Trust. Without I am assisting mylords with judgments…the boards tenure has not been made…all are public interest litigants, there is no Board or waqf before Mylords. There shouldn’t be a phenomenon that violence can be used to ‘pressurise’.
Senior Advocate Kapil Sibal: My submission upfront, what is sought through Parliamentary legislation is to interfere with the essential and integral part of faith. Referring to Article 25 and 26. If I want to set up waqf, I have to show I am practising Islam for 5 years. If I am born Muslim, why would I do that? My personal law will apply. S.3(A)(2)- create of waqf-alal-aulad shall not deny inherit to women. Who is the state to say about this? The inheritance in Islam happens after death, they are interfering before that. Central Waqf Council, under 1995, all nominees were Muslim. I have chart, all Hindu or Sikh endowments, the nominees are Hindu or Sikhs- its a direct violation. It is a parliamentary usurpation of 200 million. What is more Article 32 than reading Articles 25 and 26. This is not the case where Mylords should send us to the High Court. CEO has to be ‘Muslim’.
Senior Advocate Harish Salve: The challenge survives [to 1995 Act]. Your Lordship can decide whole matter, there is one pending before this Court. Both sides of the picture are there and mylords may decide finally. There is no need to call High Court petitions.
Senior Advocate Rajeev Dhavan: The basis of constitutional attack is, waqf is essential and integral to Islam. Religion, particularly, charity, is essential and integral part of Islam. Other aspects, i adopt Sibal’s argument. Earlier, CEO had to be Muslims, no longer its there.
Senior Advocate CU Singh: Please see Article 26, I am deviating from essential religious argument, its not important here. Please see the distinction draw- religious and charitable purposes, it does not have to answer the question of religious essential practice. Mylords, can hear us tomorrow (April 17).
Advocate Sanjay Hedge: You are from Punjab, you would know Amritsar was in non-Sikh control and it required a whole Akali Dal movement.
Senior Advocate Rajeev Shakdher: Originally Article 31 was removed, when can they tinker with the property? subject to morality, health, etc. they need probation period of 5 years to certify someone as Muslim.
Justice Viswanathan: Don’t mix, properties can be secular. Only administration of property can fall for, don’t repeatedly say essential religious practice. Don’t give trust example, the most likely would be the Hindu endowments, it is the Hindu community administering it. Read sub-section 9, appeal to the High Court.
What is ‘waqf by user’?
It refers to a practice where a property is recognised as a religious or charitable endowment (‘waqf’) based on its long-term, uninterrupted use for such purposes, even if there is not a formal, written declaration of waqf by the owner.
