Waqf hearing: ‘Courts cannot interfere unless glaring case made out’, says CJI Gavai

New Delhi: Underscoring the "presumption of constitutionality in favour of law", the Supreme Court on Tuesday said that petitioners challenging the Waqf law needed a "strong and glaring" case for interim relief.

A bench comprising Chief Justice B R Gavai and Justice Augustine George Masih commenced the hearing on a batch of pleas challenging the validity of Waqf (Amendment) Act, 2025 for passing interim orders on three issues, including the power to denotify properties declared as "waqf by courts, waqf-by-user or waqf by deed".

"There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there," the Chief Justice said when senior advocate Kapil Sibal, leading the charge against the legislation, began his submissions.

Sibal described the law as a "complete departure from historical legal and constitutional principles" and a means to "capture waqf through a non-judicial process," PTI reported.

Centre's Solicitor General Tushar Mehta had urged the bench to confine the hearing on pleas to three issues.

According to a PTI report, one of the issues is the power to denotify properties declared as waqf by courts, waqf-by-user or waqf by deed. The second issue relates to the composition of state waqf boards and the Central Waqf Council, where they contend only Muslims should operate except ex-officio members whereas the last one is over the provision stipulating a waqf property won't be treated as a waqf when the collector conducts an inquiry to ascertain if the property is government land.

Mehta's submission was vehemently opposed by senior advocates Sibal and Abhishek M Singhvi, appearing for those challenging the provisions of the 2025 law, stating that there cannot be any piecemeal hearing.

"This is a case about the systematic capture of waqf properties. The government cannot dictate what issues can be raised," Sibal said.

Sibal said that the amended law enables a systematic expropriation of waqf properties through executive means, bypassing due judicial process and moreover, waqf properties can become non-waqf ones that too by an executive order denying the right to access courts by the aggrieved parties. "Waqf is the dedication of properties to 'Allah' by the waqif and the concept that once a waqf always a waqf is jeopardised by the 2025 law," he said.

While earlier laws on the subject safeguarded the properties, the present one intended to take them away, Sibal added. He said the law was a "complete departure from historical legal and constitutional principles".

According to Sibal, the law provides for "creeping acquisition" of waqf properties and undermines concept of waqf, a permanent endowment for religious or charitable purposes under Islamic law.

Referring to Section 3C of the Act, he said it allows a designated officer to initiate an inquiry into whether a property is government land. During the pendency of such inquiry, the property is not to be treated as waqf and it effectively allows the authorities to take control without judicial review, Sibal added.

Referring to Sections 9 and 14, he said that they alter the composition of central and state waqf boards and allow a majority of non-Muslims to be part of it. "This is an attempt to dilute community control," he said, "that Section 23 permits the appointment of a non-Muslim as CEO of waqf boards."

Referring to the validity of Section 3D of the law, Sibal said that it provides that any waqf property declared as an ancient monument under preservation laws will cease to be waqf.

He asked how the authorities could demand documentary evidence or deeds for waqfs created centuries ago as prior to 1954, and particularly after 1923, registration may have been mandated but the lack of it did not negate the nature of the waqf.

Meanwhile, Singhvi questioned the provision which says a person practising Islam for last five years can only create a waqf.

Calling it "arbitrary and endless", Singhvi said no other religion was subject to such a burden.

He raised concerns about Section 3(C), saying once a property was declared non waqf, access to legal remedy was practically shut off, locking beneficiaries in a "vicious cycle".