Can Muslims Be Part Of Hindu Religious Trusts, SC Asks Centre
Opposition leaders joined a massive demonstration at Jantar Mantar in New Delhi in March to oppose the Waqf Bill. The demonstration was organised by the All India Muslim Personal Law Board (Image: SarimAliKhan/X)
On Wednesday, the Supreme Court of India engaged in a significant discussion regarding the constitutional validity of the Waqf (Amendment) Act, 2025, particularly focusing on whether Muslims could participate in Hindu religious trusts. A bench comprising Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and K.V. Viswanathan posed critical questions to the Centre’s solicitor-general, Tushar Mehta, about the implications of the Act, especially concerning the concept of ‘waqf by user.’
The term ‘waqf by user’ refers to a practice where a property is recognized as a religious or charitable endowment based on its long-term, uninterrupted use for such purposes, even in the absence of a formal, written declaration by the owner. The bench raised concerns about how such waqfs could be registered, given that many individuals might lack the necessary documentation.
Chief Justice Khanna emphasized the potential consequences of disallowing waqf by user, noting that while there may be instances of misuse, there are also genuine cases that deserve recognition. He pointed out that the legislature cannot simply declare historical judgments or decrees void, as this would lead to significant legal and social complications.
In response to the bench’s inquiries, Mehta indicated that a considerable number of Muslims do not wish to be governed by the Waqf Act. This prompted the bench to question whether this meant that Muslims would be allowed to participate in Hindu endowment boards, urging Mehta to clarify the government’s stance openly. The Chief Justice remarked that once a public trust had been declared a waqf centuries ago, it could not be retroactively reclassified by a waqf board, stating, “You cannot rewrite the past.”
Mehta further elaborated that the Waqf (Amendment) Act had undergone extensive scrutiny, with a joint parliamentary committee holding 38 sittings and reviewing nearly 98.2 lakh memorandums before the Act was passed by both Houses of Parliament. The Chief Justice suggested that one high court could be designated to handle the petitions challenging the Act, emphasizing the need for both sides to clarify their arguments succinctly.
Senior advocate Kapil Sibal, representing the petitioners, challenged the provision of the Waqf (Amendment) Act that stipulates only Muslims can create waqf. He questioned the authority of the state to determine an individual’s religious identity and eligibility to establish a waqf, arguing against the provision that requires individuals to have practiced Islam for a minimum of five years before being allowed to create a waqf. Sibal’s arguments highlighted the potential for discrimination and the infringement of individual rights based on arbitrary criteria.
Another senior advocate, Abhishek Singhvi, who represented some of the petitioners, asserted that the implications of the Waqf Act would be felt nationwide, arguing against the referral of the case to a high court. Senior advocate Huzefa Ahmadi, opposing the Waqf Act, reinforced the notion that waqf by user is an established Islamic practice that cannot be disregarded or eliminated.
The Waqf (Amendment) Act 2025 was recently notified by the Centre and received the assent of President Droupadi Murmu on April 5, following intense debates in Parliament. The Bill was passed in the Rajya Sabha with 128 votes in favor and 95 against, while the Lok Sabha approved it with 288 votes for and 232 against.
A total of 72 petitions have been filed challenging the validity of the Act, including those from prominent figures such as AIMIM leader Asaduddin Owaisi, the All India Muslim Personal Law Board, Jamiat Ulama-i-Hind, and Congress MPs Imran Pratapgarhi and Mohammad Jawed.
On April 8, the Centre filed a caveat in the Supreme Court, seeking a hearing before any orders were issued regarding the matter. A caveat serves to ensure that no decisions are made without the opportunity for the party that filed it to be heard, underscoring the contentious nature of the ongoing legal battle surrounding the Waqf (Amendment) Act.
