NEW DELHI: The Union govt Thursday pre-empted a looming stay on certain contentious provisions of the recently enacted Waqf (Amendment) Act by assuring Supreme Court that it will make no appointments to the Central Waqf Council and Auqaf Boards and maintain status quo on waqf properties, 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 150-odd 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, the assurances made by Mehta not to make any appointment to the council appears to be of little consequence to the Union govt.
T he 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 Solicitor General 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 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 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. This would also mean that undeclared or unregistered waqf properties, including those through ‘waqf by user’, could be subject to scrutiny to identify legitimacy of ownership and whether it was govt land.
When the hearing started, the SG said it would be harsh if the court was considering staying some provisions of the Act on taking a prima facie view without a detailed scrutiny of the history of the 1995 Waqf Act from its inception in 1923, joint parliamentary committee deliberations and its report as well as the object behind enactment of the amendment by Parliament.
Mehta said govt was answerable to the people and Parliament and pointed out that village after village had been declared waqf property, resulting in thousands of people losing their land. This had weighed with the govt while introducing the bill to amend the Waqf Act, he said, adding that the court must be alive to the fallout of its decision.
Given the difficulties in managing the hearing when there was a constant inflow of fresh petitions that resulted in engaging of a greater number of advocates, CJI Khanna said the petitioners must select five petitions as the lead ones and a nodal counsel to coordinate.
Rest of the petitions would either be regarded as applications or disposed of and the case list would not be in any individual or organisation’s name but be shown as ‘In Re: Waqf (Amendment) Act’, he suggested.
The CJI-led bench was overwhelmed by a courtroom packed with counsel representing over 150 petitioners and many unable to enter the courtroom because of overcrowding. Live webcast of proceedings in the case remained elusive for many lawyers and journalists as it reached maximum capacity much before commencement of hearing at 2pm.
On earlier occasions, the SC used to resort to live telecast through its own YouTube channel but, surprisingly, for this nationally important case, the same procedure was not adopted and officials expressed inability to accommodate lawyers and journalists."Get the latest news updates on Times of India, including reviews of the movie
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