Will the Supreme Court issue stay on parts of Waqf Act? The 3 issues in question

Over the past few days, the contentious Waqf Act, 2025, has garnered attention across India. On Wednesday (April 16), the matter reached the Supreme Court after a clutch of petitions challenging the law recently passed by the Narendra Modi government.

After a day’s hearing, the Supreme Court bench headed by Chief Justice of India (CJI) Sanjiv Khanna indicated it is considering staying the operation of certain parts of the law. “We do not stay a legislation normally at this stage of the challenge unless in exceptional circumstances. This appears to be an exception,” said Chief Justice of India Sanjiv Khanna in an oral observation.

However, before the bench could pass a written order, the Centre and the states requested more time, prompting the apex court to say that it would hear the case again on April 17 before passing orders.

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The hearing into the case will resume at 2 pm before the three-judge bench comprising Chief Justice of India (CJI) Sanjeev Khanna, and Justices Sanjay Kumar and KV Viswanathan.

But what are the three points that the Supreme Court is likely to pass an interim order on? What are the concerns of the court on them? We examine and get you the answers.

Waqf-by-user

While hearing the petitions challenging the Waqf (Amendment) Act, 2025, the Supreme Court has flagged the issue of the Centre doing away with the concept of waqf-by-user.

“Waqf-by-user” is a legal doctrine that permits properties used for religious or charitable purposes as Waqf to be declared as such, based on usage. In layman’s terms, waqf-by-user is when land used for Muslim religious or charitable intentions is considered as waqf even if it’s not registered as such. As of today, several mosques and graveyards fall into this category.

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However, the new law has abolished the concept of ‘waqf by user’, which has become a big point of contention for the petitioners. Speaking on the same, senior advocate Abhishek Manu Singhvi, appearing for the petitioners, said that “of about eight lakh existing waqfs, roughly four lakhs are perhaps by user and that the newly introduced provision, makes them non-existent by one stroke of the pen.”

Kapil Sibal, another advocate for the petitioners, also argued, “Who was the state to say I cannot be a waqf-by-user? Many of these waqfs were created hundreds of years ago. Where do you find the records?”

Responding to this, the Supreme Court said many mosques were established in the 14th or 15th centuries. “To require them to produce a registered deed is impossible. In most cases, say Jama Masjid of Delhi, the waqf will be waqf-by-user. There may be an abuse of ‘waqf-by-user’, but there are genuine cases of ‘waqf-by-user’,” it observed.

“How can the Centre rewrite the past going back hundreds of years? If the Centre denotifies ‘waqf-by-user’ properties, it will create issues,” the court added.

However, Solicitor General Tushar Mehta argued that “nothing prevented them from going and getting it registered after 1923. It was mandatory.” “From 1923 when the first Waqf Act came into force, registration of waqf is mandatory, statutorily, mandatorily required. You cannot have an unregistered waqf. Even waqf-by-user cannot be unregistered, which was followed by the waqf act of 1954. Under 1954 Act also, it is mandatory to have your waqf-by-user or any other waqf registered. That was followed by the Waqf Act of 1995. The present Act, where also the registration of waqf is… only compulsory.…,” Mehta said.

Representation of non-Muslims on waqf boards

The issue of non-Muslims in Waqf boards also became a point of contention with the Supreme Court directly questioning Solicitor General Tushar Mehta on it. Moreover, they drew a parallel with the Hindu endowment scenario.

The issue comes as the Waqf (Amendment) Act, 2025 mandates the inclusion of one member each from Bohra and Aghakhani communities in State/UT Waqf Boards. Additionally, the board will have two non-Muslim members, excluding the ex-officio members.

However, during the Supreme Court hearing on Wednesday, senior lawyer Kapil Sibal mentioned Sections 9, 14 in the new law regarding the nomination of non-Muslims in the Central Waqf Council and the state waqf boards. This, according to Sibal, was a direct violation of Article 26.

On this, the Supreme Court also noted that only eight of 22 members of the Central Waqf Council are Muslim under the new law. “So, eight are Muslims here,” Justice PV Sanjay Kumar observed. “Yes, correct. This is a complete takeover through nomination,” Sibal responded.

The court then took it further asking, “Will you allow Muslims to be part of Hindu religious trusts?”

The Solicitor General then suggested that by the same logic, “this bench also cannot hear the case”. This prompted outrage from the bench, “What! When we sit over here. We lose our religion. For us both sides are the same. How can you compare it with the judges?”

Powers of the Collector

During the hearing, the Supreme Court also raised concerns about the powers of the collector as mandated in the new law. The new law states in Section 3C that if any question arises as to whether any Waqf property is government property, an officer above the rank of District Collector shall conduct an inquiry and determine whether the property belongs to the government.

The new law further states that until the collector finalises his/her report, the disputed property will lose its character as that of a waqf.

“Is this fair”, asked the court, adding, “The moment the collector starts inquiry and even when he has not decided yet, you say that it cannot be treated as waqf… What purpose will be served by this proviso?”

The matter will continue today (April 17) in the Supreme Court post 2 pm and most expect that the Bench will deliver interim orders on these three issues.

With inputs from agencies