Though it did not pass any order and will continue the hearing on Thursday as well, the Supreme Court on Wednesday proposed to bar the nomination of non-Muslims in the Central Waqf Council and Waqf Boards and a stay of certain key provisions of the Waqf (Amendment) Act, 2025, including the powers of collectors in deciding disputes over Waqf properties and provisions on de-notifying properties declared as waqf by the courts.
While stating that the suggested order was the outcome of the deliberation amongst the three-judges on the bench, Chief Justice Sanjiv Khanna heading a bench also comprising Justice Sanjay Kumar and Justice KV Viswanathan did not pass any order as Solicitor General Tushar Mehta, senior advocate Vikas Singh, Rakesh Dwivedi and others urged the court to grant them more time to place their arguments before it.
As the bench posted the matter for further hearing at 2 pm tomorrow (Thursday), it was suggested that they be given half an hour to advance their arguments in favour of the Waqf (Amendment) Act, 2025. Senior advocate Kapil Sibal who had opened the arguments against the Waqf law, sought 10 minutes to give their rejoinder.
Sibal appeared for Maulana Arshad Madani, President, Jamiat Ulema-I-Hind. There are more than 100 petitions by those opposing the Waqf (Amendment) Act and those backing it. The Waqf (Amendment) Act, 2025, passed by Lok Sabha on April 3, the Rajya Sabha on April 4 and assented by the President Droupadi Murmu on April 5, 2025.
Giving the outline of the order they propose to pass, Chief Justice Khanna said that some of the provisions of the law under challenge could have grave ramifications.
“Regarding ex parte stay, we have some discretion. We are all concerned about it. When a law is passed, courts do not pass an order in the admission stage. But in this case, we think that if there is waqf by user and it is denotified, then there are grave ramifications,” said the Chief Justice speaking for the bench.
Stating that their interim order will balance equities, the court said – “Whichever properties were declared by court to be waqf will not be de-notified or be treated as non waqf – whether it is waqf by user or not, the Collector can continue with proceedings but the provision will not be given effect to and regarding Waqf boards and Waqf Council, ex officio members can be appointed but the other members have to be Muslims.”
In the course of the hearing, that lasted more than two hours, the court asked the Solicitor General Tushar Mehta representing the central government, “Mr Mehta, are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards. Say it openly!”
Chief Justice Khanna said, “So as per the Act (Waqf (Amendment) Act) eight members (out of 22 member Waqf council) are Muslims. two judges (who) may not be Muslims! Then the rest are non-Muslims.” The bench took umbrage as Solicitor General Mehta said, “Then this bench also cannot hear the case.”
Chief Justice Khanna retorted “What! When we sit over here. We lose our religion. For us both sides are the same. How can you compare it (nomination of two judges on Waqf Board) with the judges? Why not have non-Muslims also in the advisory board of Hindu endowments then. Are you ready to make a statement before the court that maximum two apart from the two ex-officio members will be no non-Muslims?
The top court is hearing more than 100 petitions challenging the constitutionality of the Waqf (Amendment) Act, 2025, including by the Congress leader and Lok Sabha member Mohammad Jawed, who was also the member of the Joint Parliamentary Committee that had examined the Waqf (Amendment) Bill, 2024, the All India Majlis-e-Ittehadul Muslimeen (AIMIM) Chief and Lok Sabha member, Asaduddin Owais, the Aam Aadmi Party MLA in Delhi assembly Amanatullah Khan, the President of the Islamic cleric’s body Jamiat Ulema-i-Hind, Maulana Arshad Madani, Kerala Sunni scholars’ body Samastha Kerala Jamiatul Ulema, Social Democratic Party of India, and the NGO Association for Protection of Civil Rights (APCR).