The Union govt pre-empted a looming Supreme Court stay on certain contentious provisions of the recently enacted Waqf (Amendment) Act by assuring that it will make no appointments to the Central Waqf Council and Auqaf Boards and maintain status quo on waqfs, including ‘waqf by user’, already registered or declared under the Waqf Act, 1995.
Accepting solicitor general Tushar Mehta’s assurance and refraining from ordering interim stay on certain provisions of the Act, a bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan asked the Centre, states and all waqf boards to file their responses to the over 150 petitions within seven days. The SG’s assurance came after the CJI observed, “We had said there were some positive things in the law. We have also stated that there cannot be a complete stay. At the same time, we also don't want the situation to change from what is prevailing now.” The CJI flagged the ‘waqf by user’ provision and the stipulation that a person had to be practising Islam for five years to be eligible to be a waqif but did not elaborate further.
The court asked the petitioners, who have challenged the constitutional validity of the changes made to the Waqf Act, 1995, on the ground that these violated Muslims’ fundamental right to religion, to file rejoinders in five days after the Centre, states and waqf boards file their responses. It posted further hearing on May 5. As CJI Khanna retires on May 13, it is to be seen whether he will hear the petitions or assign these to another bench.
Since the Central Waqf Council has been defunct for the last three years, assurances made by Mehta not to make any appointment to the council appears to be of little consequence to the Union govt. The petitioners have questioned the provision for nomination of two non-Muslims to the council and boards as interference in the Muslim community’s fundamental right under Article 26.
The SG clarified that if states nominate members to Auqaf Boards, most of which are continuing as their remaining tenure is protected by the Act, in the next two weeks when the SC is seized of the matter, it would be termed void. The assurance to preserve the sanctity of waqfs and ‘waqfs by user’ already registered or notified under the Waqf Act, 1995, is part of the amended Act, which says, “… existing ‘waqf by user’ properties registered on or before the commencement of the Waqf (Amendment) Act, 2025, as ‘waqf by user’ will remain as waqf properties except that the property, wholly or in part, is in dispute or is a government property”.
What the assurance means is that the govt may not reopen ‘waqf by user’ properties, which have been registered prior to the amended Act, even if there is a dispute about the property being govt land. This was one of the major concerns of the petitioners who said the validity of old waqf properties could be reopened by creating a dispute about these being govt properties.
