Constitutionality of Waqf Amendment Act | Day 3: Irreparable injury if provisions are activated, petitioners argue

Deletion of waqf by user 

Sibal first explained that a waqf is an endowment to Allah and a religious right of those practising Islam. There are two types of waqfs—regular waqfs and waqfs by user. The latter has been accepted and recognised as a waqf property based on its usage over many years. However, the 2025 Act abolishes the waqf by user concept by making official documentation mandatory and declaring unregistered waqfs invalid. This invalidates many old waqf properties, Sibal said. 

He submitted that while the past Waqf laws since 1954 had also mandated registration, they never changed the nature of the waqf in the absence of registration. The only consequence, in the past, fell on the Muttawali, the custodian of a waqf. In other words, a property continued to be a waqf even if it was unregistered. The 2025 Amendment Act invalidates an unregistered waqf. As a result, several old properties from centuries ago are at risk of being seized. 

Singhvi added that according to the Union’s own counter, more than half the waqf properties were waqfs by users. Further, he submitted that an alleged surge in unregistered waqfs was due to a limited survey carried out in only five states and four union territories. Moreover, a surge on the waqf portal was due to a data updating exercise—no new waqfs were formed, only existing ones were added.  

Dhavan added that this kind of redefinition of religious property through a legislative means was contrary to the tenets of religious beliefs and freedoms and violated Articles 25, 26 and 29 of the Constitution. He added that such a redefinition had never been carried out before.  

Once declared as an ancient property, not a waqf

Sibal submitted that according to Section 3D of the 2025 Act, a declaration of an ancient monument under the Ancient Monuments Preservation Act, 1904 or the Ancient Monuments and Archaeological Sites and Remains Act, 1958, as a waqf property becomes void. He added that a religious structure can be an ancient monument and that the intention of the Ancient Monument Acts was never to take away the religious character of waqf properties. The amendment retrospectively removes the waqf status of centuries-old religious sites that have historically served as places of worship and communal religious practice. This strips the Muslim community of its constitutional right to manage religious affairs and administer endowments.  

CJI Gavai questioned if this would interfere with the right to practice the religion at the sites. Sibal responded that once declared as a protected site or area, the property stops being a waqf altogether, hindering the right to practise there. 

Sibal further contended that the 1904 Act did not have a religious character. It was meant to preserve religious rights. However, the 2025 Waqf Act takes away such a right. 

Singhvi added that this had the effect of including properties protected under the Places of Worship Act,1991, under its ambit. “That is not even an argument,” Mehta interjected. “In my time, let me exercise my fundamental right to be wrong,” Singhvi remarked. Ahmadi added that the provision would “obliterate” several mosques recognised under the Ancient Monuments Act. He described Section 3D as an overarching provision, as it can regulate sites that would otherwise be protected under the Places of Worship Act. 

Details of who furnished the waqf

Next, Sibal highlighted that the amendments to Section 3(r) in the new Act require the waqif to demonstrate that they have practised Islam for at least five years. He pointed out that it had to be proven that such a waqf was without “contrivance”.

This, he said, was violative of the right to equality, as no other religion has such a requirement. He pointed out that the provision was vague and manifestly arbitrary, as it did not clarify the process. “At my deathbed, if I want to create a waqf, I will be asked to demonstrate that.” Why? To whom? Who will decide? 

Singhvi added that the requirement of the process to prove that there is no contrivance is a “recipe for making the applicant visit the office of the collector for eternity.” 

Discriminatory against Muslims of the Scheduled Tribe community

Section 3E of the Amendment Act states that Land belonging to members of Scheduled Tribes, as protected under the Fifth or Sixth Schedule of the Constitution, cannot be declared or deemed waqf property. Sibal submitted that this discriminated against members of the ST community who were Muslims. He submitted a list of states which have a Muslim population belonging to the Scheduled Tribe community. This amendment, he said, was “per se unconstitutional”. He added that the right under Article 25 for Muslims belonging to the ST community was taken away as no land could be declared as a Waqf property.

Sibal also informed the Bench that Sections 3D and 3E were introduced into the Bill without any deliberation or discussion. They were absent from the Joint Parliament Committee. They were added at the last minute on the day of the voting on 2 April. These were “very disturbing features” of how the Act came to be. 

Dilution of Muslims in management

The petitioners submitted that, per the 2025 Amendment Act, Muslims are no longer the majority in the composition of the Waqf Council or the State Waqf Boards. 

Under Section 9 of the 1995 Act, all members of the Central Waqf Council, except the ex-officio Chairperson (the Union Minister in charge of waqf), were to be Muslims. Under the amended provision, eight members must still be Muslims, but the remaining twelve can be from any religious community. 

The Bench pointed out that this did not put the Muslims in the minority in the Council; other members, except two, could still be Muslims. Sibal said that, in theory, it still marked a departure from the earlier law. The mandate was removed under the 2025 Act. Further, no other religion permitted members from outside their community to manage their endowments. “Even two is too much,” he said. 

Similarly, the State Board, which was earlier elected by members of the community, was now “nominated” by the state government. Further, the Chief Executive Officer was previously mandatorily Muslim. But now, they could be nominated by the state government, whether they are Muslim or not. 

No remedy for Waqif under the new law

Sibal pointed out that the 2025 Act does not allow a property to be registered as a waqf if there is a dispute or is government property. Any person can raise a dispute and it is up to the District Collector—a government official—to inquire about it.  Moreover, a disputed property loses its character as a waqf during an inquiry process. Therefore, even before the Collector submits a report, the waqf status ceases to exist. 

Section 36(10) states that an appeal cannot be made against the denotification of an unregistered property. Therefore, any person, by merely raising a dispute, can stall registration, and the waqif has no remedy against it. 

This, he said, was illegal. “I can’t file suit or proceedings. My fundamental right to litigate is lost. My property is taken over and I cannot litigate. This is manifestly arbitrary.”

Sibal also submitted that earlier, the Board could survey a property, identify if it was waqf or not and then register it. Now the survey process has gone and only registration has been made mandatory. 

Evacuee properties

Petitioner submitted that earlier, under Section 108, evacuee properties fell with the Board. However, that has been omitted in this Act. Ahmadi added that Section 107 applies the Limitation Act to the Waqf Act, which effectively makes it impossible to challenge the declaration of evacuee properties due to time limits on filing such claims.

The Union will argue tomorrow.