In a dramatic turn of events, the Supreme Court on Wednesday raised sharp questions to the Centre during the hearing of a group of 73 petitions against the Waqf Amendment Act. The bench headed by Chief Justice Sanjiv Khanna and consisting of Justices Sanjay Kumar and KV Vishwanathan was concerned about many contentious provisions of the legislation, chiefly the recognition of ‘Waqf by user’ and the addition of non-Muslims to the Central Waqf Council.
Two Central Questions Agitated by the Bench of Supreme Court
Right from the beginning of the hearing, Chief Justice Khanna emphasised two core questions: whether the case should be referred to a high court and what particular constitutional arguments would be urged by the petitioners.
Senior Advocate Kapil Sibal, representing one of the petitioners, said, “Several provisions of the new law infringe Article 26 of the Constitution, which promises the right to administer religious affairs.” Sibal was especially critical of the powers conferred on the Collector by the new law, saying, “The Collector is a part of the government and if he plays the role of a judge, it is unconstitutional.”
‘Waqf by User’ Provision Under Scanner
Sibal also highlighted the provision for ‘Waqf by user‘, where a property could be regarded as Waqf on the basis of its long religious or charitable usage, even if there is no documentation. He maintained that the new legislation goes against this fundamental principle by excluding disputed or government land. “The issue is, if a waqf was established 3,000 years ago, they will demand the deed,” he said.
Senior Advocate Abhishek Manu Singhvi further pointed out that almost 4 lakh among 8 lakh Waqf properties come in the category of ‘Waqf by user’. At this point, Chief Justice Khanna observed, “We are informed Delhi High Court stands on Waqf land. We do not say everything waqf by the user is bad, but there is concern.”
Singhvi explained that the petitioners are not asking for the invalidation of the whole Act but are seeking a stay on certain provisions.
Centre Defends the Act; Supreme Court Presses for Clarity
Standing for the Centre, Solicitor General Tushar Mehta argued on behalf of the law, saying that it was passed after thorough debates in Parliament and vetted by a joint parliamentary committee. But the Chief Justice probed deeper into the ‘Waqf by user’ provision, asking, “Are you saying that if a ‘Waqf by user’ was created by a (Supreme Court) order or otherwise, today it is void?”
He pointed out that the majority of the mosques and Waqf institutions are traceable to the 13th to the 15th centuries, and hence, giving formal documentation is virtually impossible. “If you undo it, then it will be a problem,” he warned.
The bench also questioned the law’s inclusion of non-Muslims on the Central Waqf Council. “Mr Mehta, are you saying you would permit Muslims on Hindu endowment boards? Say it loud,” the Chief Justice said.
Concerns Over Violence and Public Unrest
The Chief Justice spoke about incidents of violence in connection with the new law and stated it was “very disturbing.” When Mehta opined that protests were a bid to “pressurise the system,” Sibal retorted, “It is not known who is pressuring.” The Chief Justice emphasised that “positive points in the law must be highlighted,” but also warned against abuse and premature rejection of genuine waqf claims.
The Supreme Court will resume hearing the case tomorrow, with hopes that it may establish significant precedents on religious rights, property law, and the role of secular government in matters of faith.
