NEW DELHI: Amid indications that it may stay some of the provisions of the amended Waqf Act, on Thursday the Supreme Court declined to stay the recent changes made to the Waqf law after the Centre assured no recruitment would be made to Waqf boards and councils, and that Waqf properties declared or registered as Waqf by users would not be denotified till the next date of hearing.
A three-judge bench presided by Chief Justice of India Sanjiv Khanna took on record the statement made to this effect by Solicitor General Tushar Mehta, who appeared for the Centre.
After a brief hearing, the bench, also comprising Justices Sanjay Kumar and K V Viswanathan, said in its order that during the hearing, Solicitor General Tushar Mehta stated that “the respondents would like to put in a short response which will be filed in 7 days”.
“He further states that till the next date of hearing, he assures the court that no appointments will be made to the Council and the Board under sections 9 and 14 of the amended provisions. It is also stated that till the next date of hearing, the Waqf, including Waqf by use, whether declared by way of notification or by way of registration, shall not be identified, neither will their character be changed. We take the statement on record. Let the reply/counter affidavit on behalf of the respondents be filed within 7 days. Response thereto be filed within 5 days thereafter.”
On Wednesday, the apex court indicated that it may stay some of the provisions of the amended Waqf Act, including those related to Waqf by user, the inclusion of non-Muslims in the Waqf boards and council and the powers of the collector to change the status of disputed Waqf lands.
Solicitor General Tushar Mehta said Thursday in the court it would not be appropriate “to consider staying indirectly or indirectly, based upon some prima facie or tentative reading of some of the sections.”
He said, “We will have to take your lordships through the history of legislation, the 1923 Act, which is a hundred years back, followed by 1935, followed by 1954, followed by an amendment in 1984. There was a committee recommendation followed by 1995 and the amendment. And in the meanwhile, we as a government and as a Parliament, are answerable to the people. We received lakhs and lakhs of representations, which resulted in some of the provisions being made.”
“For example, villages and villages are taken as Waqf. Private properties of individuals are taken as Waqf, and I have orders which say that when they approach the High Court, (they are told) these are disputed questions of fact. It is a considered piece of legislation.”
He contended that it is a matter where the court would require assistance, “because it would affect a large number of innocent people, their right to land, their right to property…”.
When Justice Sanjay Kumar said the court is not deciding the matter now, Mehta said, “But your lordships are taking a very serious and harsh step in staying partly, indirectly, or in whichever way one may call it, some statutory provisions without complete assistance”.
“My request is this…Allow me to place within a week, and I promise Your Lordships, it will come before Your Lordship within a week, my preliminary reply, some material documents with documents and statutes to show… This is not a matter which Your Lordships would also like to consider on prima facie reading.”
To which, CJI Khanna said, “It’s like this, we had a particular situation,” and maybe there are “infirmities”. “We also said there are certain positive things…” “Let me also very clearly put it. Somebody did say there should be a complete stay. We said nothing doing… At the same time, we don’t want the situation to change… We don’t want whatever situation today is prevailing to change so drastically that it affects… There are provisions like the provisions which you have enacted regarding the five years (requirement that to create a Waqf, he or she must have been a practising Muslim for at least 5 years), we are not staying that,” he said.
“All that we want to do… You are right, absolutely. One of the thumb rules the courts apply, they don’t stay the legislation at the preliminary stage. At the same time, there’s another thumb rule… that when the matter is pending consideration before the court, the situation as it is prevailing today should continue so as not to upset the rights of the parties,” said CJI Khanna.
Mehta then gave the court the assurance about the Waqf by user provision and appointments to Waqf boards and councils.
The bench also segregated cases filed by Hindu parties challenging earlier Waqf laws of 1995 and 2013 and changed the cause title of the case to "In Re: Waqf Amendment Act."
The Supreme Court had previously indicated that it might stay certain key provisions of the Act, such as the inclusion of non-Muslims in the Central Waqf Council and Waqf Boards, the powers of Collectors to decide disputes over Waqf properties, and provisions related to de-notifying properties declared as Waqf.
During the proceedings, CJI Khanna had questioned how properties declared as Waqf long ago could be suddenly reclassified, highlighting concerns about the government attempting to "rewrite history" through amendments to the law.
"The government cannot rewrite history through these changes brought in by the amendments to the Waqf law," said the CJI, referring to the scope under the new Act to de-notify properties declared as Waqf hundreds of years ago.
The bench had also raised concerns about the potential impact of the new Act on properties not registered or documented, such as Waqf-by-user properties, which account for a significant number of Waqf properties in India.
Several petitions have been filed in the Supreme Court challenging the Act, arguing that it is discriminatory towards the Muslim community and violates their fundamental rights. The petitions include challenges from various individuals, MPs, and organisations such as the All India Majlis-e-Ittehadul Muslimeen (AIMIM), the All India Muslim Personal Law Board (AIMPLB), and others.
The Act was passed by Parliament after heated debates in both Houses, and President Droupadi Murmu gave her assent to the Waqf (Amendment) Bill, 2025, on April 5.
Defending the Act, BJP-led state governments in Rajasthan, Haryana, Maharashtra, Madhya Pradesh, Assam, Uttarakhand, and Chhattisgarh filed impleadment applications. Additionally, advocates and organisations, including those protecting the rights of tribals and Hindus, also submitted applications in support of the Act.
The Supreme Court's next hearing on this matter will focus on directions and interim orders, with a final resolution expected to follow.
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