The Waqf Amendment Act, 2025, brought by the Narendra Modi government to replace the Waqf Acts of 1995 and 2013, was passed in Parliament on April 4 and was approved by President Droupadi Murmu the next day. Around 100 petitions were filed before the Supreme Court seeking the repeal or temporary stay of the amendments which by then had attracted wide criciticms. Now with the interim judgment of the Supreme Court issued on the 15th of this month, concerns have become more acute than before. The court allowed some of the demands in the petitions against the law in part or in full, but accepted the legislation as a whole. Many leaders who expressed satisfaction over the verdict before understanding it in detail have later revised their position. In April, the then Chief Justice Sanjay Khanna, Justices P.V. Sanjay Kumar and K.V. Viswanathan heard ten petitions and during the hearing obtained an assurance from the government that two things prima facie unacceptable in the law would not be implemented. First, there will be no order for the time being to declare any existing Waqf property as non-Waqf. Second, no new members will be appointed to the Central Waqf Council or the State Waqf Boards to include non-Muslim members. Subsequently, when it became apparent that the judgment could not be delivered during the remaining term of Chief Justice Sanjay Khanna, the matter was deferred for consideration by a bench comprising a new Chief Justice. After hearing the arguments in May under the new Chief Justice, the judgment has now been delivered by a bench comprising Chief Justice B.R. Gavai and Justice Augustine George Masih.
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The Supreme Court considered two principles while assessing the merits and demerits of the law. First, a law passed by an elected legislature should be deemed fundamentally valid. The court can interfere or annul it only if there is a violation of the constitution involved. Second, no matter how well-intentioned a law is, it cannot be made arbitrarily and infringing on the constitutional right of citizens to property. In this regard, if a complaint is received regarding waqf properties that it is encroachment of government land, and if the executive branch is made the final arbiter of the matter, the court will have to strike down such a legislation. The court found that such a denial of rights is included in the new amendment to the law. However, the court has, in an unusual decision, given a clean chit to the government's good intention in incorporating such a provision. The government has included measures that can with ease and speed eliminate waqf rights through government intervention. The law does not require the waqf's custodian, the ‘Mutavalli’, to be informed and heard before the freezing of the waqf status. Justice is violated when a government official is appointed to examine whether the land belongs to the government or not, and in the interim period before the report of the official is submitted, it is not considered as a waqf property. No reasonable timeline has been fixed either for that investigation. The authority to determine who has the ownership lies with an official not below the rank of the District Collector. Thus the consoling part of the judgment for the Muslim side is that the provision in which the decision is made by an official of the government itself, which is a party to the dispute, has been stayed because it was in direct violation of the separation of powers envisaged by the Constitution.
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The bench also said that the court in this case considered only what should be temporarily stayed and that the parties can still approach the court on the overall validity of the law. One such issue is the provision in the Act that requires the registration of waqf properties that were previously made waqf without documentation, and are in use on the principle of ‘waqf by use’. The court has upheld the said law. The court orders that the registration of waqf properties was already made mandatory through the earlier, but the properties that became waqf by use should be considered valid waqf properties if the registration is completed by the date of the law coming into force or within a maximum of six months thence. The law also stipulates that if a property is to be made waqf, waqf, it must be registered. According to this section, which may seem logical and innocent at first glance, a huge percentage of properties that currently exist as waqfs will have to go through a difficult registration process. The chances of them continuing as waqfs will depend on how the wide discretion of the officials, who are the instruments of the government, is exercised. The court cannot predict or comment on the politics of the government. But, in reality, organisations and institutions that aim at the protection and effective use of waqf properties should think deeply about how fair the approach of the BJP-led governments in power at the Centre and in the states will be. At the same time, it should be recognised that the legal battle to ensure justice is still ahead.
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