DELHI: The Supreme Court hearing on Waqf Amendment Act on Wednesday prompted intense constitutional debate as the bench led by Chief Justice Sanjiv Khanna raised significant concerns over religious autonomy, the structure of Wakf Boards, and the inclusion of non-Muslims in a traditionally Islamic institution. The court scrutinised the Centre’s rationale behind key provisions in the amended law, questioning whether these violated fundamental rights guaranteed under the Constitution.
A three-judge bench comprising Chief Justice Sanjiv Khanna, Justice P.V. Sanjay Kumar, and Justice K.V. Viswanathan presided over the hearing, which addressed over 100 petitions challenging the amended Waqf Act passed by Parliament on 4 April and enacted on 8 April following Presidential assent. The petitioners, represented by senior advocates Kapil Sibal, Rajeev Dhavan, Abhishek Manu Singhvi, and C.U. Singh, contended that the amendments infringed upon religious freedom, particularly Article 26, which allows religious denominations to manage their own affairs.
One of the central issues in the Supreme Court hearing on Waqf Amendment Act was the inclusion of non-Muslim members in the Central Waqf Council. The Court asked the Centre whether it would similarly allow Muslims to serve on Hindu religious boards, highlighting a potential double standard. “Would you permit Muslim members in the Tirupati Devasthanam Board or other Hindu endowments?” the bench asked, underlining that Hindu religious boards do not allow non-Hindus as members. The Chief Justice clarified that only ex officio officials should be exempted and all other members of Waqf Boards must be Muslims.
The petitioners also challenged the constitutional validity of empowering District Magistrates to adjudicate disputes over Waqf properties. Sibal argued that giving quasi-judicial powers to executive officers violated the principle of impartiality and gave undue control to the state in religious matters. “The Collector is the government’s representative. How can he be the judge in a matter where the government is an interested party?” Sibal asked.
Another key issue raised was the legal status of ancient Waqf properties created by user, i.e., through long-standing community usage without formal deeds. The court noted the difficulty of producing documentation for mosques and properties dating back to the 14th and 16th centuries. “There are centuries-old mosques that have no sale deeds. If you invalidate them for lack of papers, you’re erasing history,” said the bench, questioning how such properties could be registered under the amended law.
Solicitor General Tushar Mehta, appearing for the government, countered that registration had been mandatory even under the 1995 Act and that the recent amendments merely reinforced existing requirements. He also rejected claims of executive overreach, arguing that the reforms aimed to enhance transparency and accountability.
Addressing concerns over recent protests against the law, Mehta cautioned the Court against encouraging a perception that violence could influence judicial decisions. “Let there be no impression that pressure tactics can dictate constitutional outcomes,” he said. The Court acknowledged the unrest but reaffirmed that its verdict would be based solely on legal merit.
While refraining from issuing immediate directions, the bench indicated it was considering two interim orders: one, that all non-ex officio members of Waqf Boards must be Muslims; and two, that the government must not take any coercive steps against by-user Waqf properties during the pendency of the case.
The hearing will resume on Thursday, 17 April at 2 PM. The outcome of the Supreme Court hearing on Waqf Amendment Act is expected to have significant implications for the governance of religious trusts and the constitutional balance between state oversight and minority rights.
