‘Make a ‘strong, glaring’ case for relief on Waqf issue’

 

 

UNDERSCORING the “presumption of constitutionality in favour of law”, the Supreme Court on Tuesday said petitioners challenging the waqf law needed a “strong and glaring” case for interim relief. A bench comprising Chief Justice B R Gavai and Justice Augustine George Masih commenced the hearing on a batch of pleas challenging the validity of Waqf (Amendment) Act, 2025 for passing interim orders on three issues, including the power to denotify properties declared as “waqf by courts, waqf-by-user or waqf by deed”.

 

“There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there,” the CJI said when senior advocate Kapil Sibal, leading the charge against the legislation, began his submissions. Sibal described the law as a “complete departure from historical legal and constitutional principles” and a means to “capture waqf through a non-judicial process”. Centre’s Solicitor General Tushar Mehta had urged the bench to confine the hearing on pleas to three issues. One of the issues is the power to denotify properties declared as waqf by courts, waqf-by-user or waqf by deed. The second issue relates to the composition of State waqf boards and the Central Waqf Council, where they contend only Muslims should operate except ex-officio members whereas the last one is over the provision stipulating a waqf property won’t be treated as a waqf when the collector conducts an inquiry to ascertain if the property is government land. Mehta’s submission was vehemently opposed by senior advocates Sibal and Abhishek M Singhvi, appearing for those challenging the provisions of the 2025 law, that there cannot be any piecemeal hearing. “This is a case about the systematic capture of waqf properties.

 

The Government cannot dictate what issues can be raised,” Sibal said. Sibal said the amended law enables a systematic expropriation of waqf properties through executive means, bypassing due judicial process and moreover, waqf properties can become non-waqf ones that too by an executive order denying the right to access courts by the aggrieved parties. “Waqf is the dedication of properties to ‘Allah’ by the waqif and the concept that once a waqf always a waqf is jeopardised by the 2025 law,” he said. Earlier laws on the subject, he added, safeguarded the properties and the present one intended to take them away.

 

He said the law as a “complete departure from historical legal and constitutional principles”. Sibal said the law provides for “creeping acquisition” of waqf properties and undermines concept of waqf, a permanent endowment for religious or charitable purposes under Islamic law. Referring to Section 3C of the Act, he said it allows a designated officer to initiate an inquiry into whether a property is government land. And strangely, during the pendency of such inquiry, the property is not to be treated as waqf and it effectively allows the authorities to take control without judicial review, Sibal added. He also referred to Sections 9 and 14 and said they alter the composition of central and state waqf boards and allow a majority of non-Muslims to be part of it. “This is an attempt to dilute community control,” he said, “that Section 23 permits the appointment of a non-Muslim as CEO of waqf boards.”

 

He also dealt with the validity of Section 3D of the law and said it provides that any waqf property declared as an ancient monument under preservation laws will cease to be waqf. He asked how the authorities could demand documentary evidence or deeds for waqfs created centuries ago as prior to 1954, and particularly after 1923, registration may have been mandated but the lack of it did not negate the nature of the waqf.