New Delhi: Commencing the hearing on a clutch of petitions challenging the constitutional validity of the Waqf (Amendment) Act 2025, the Supreme Court on Wednesday proposed to pass an interim order that the properties declared as waqf, including “waqf-by-user”, will not be denotified. The Centre opposed the suggestion and sought a hearing before such a directive.The apex court, which will continue hearing the matter on Thursday, also asked the Centre whether it was willing to allow Muslims to be part of Hindu religious trusts. The top court also expressed concern over the violence that followed the law’s enactment, calling it “very disturbing”. While hearing the pleas, a bench comprising Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and K.V. Viswanathan said, “The properties declared by courts as waqfs should not be denotified as waqfs, whether they are by waqf-by-user or waqf-by-deed, while the court is hearing the challenge to the Waqf Amendment Act 2025… All members of the Waqf Boards and Central Waqf Council must be Muslims, except the ex-officio members.” As the hearing began, the top court considered referring the pleas to one high court but later heard at length a bevy of senior advocates, including Kapil Sibal, Abhishek Singhvi, Rajeev Dhavan, among others, and solicitor-general Tushar Mehta, who represented the Centre. Referring to the recent riots in Murshidabad and South 24 Parganas districts of West Bengal, the CJI said, “One thing that is very disturbing is the violence that is taking place. If the matter is pending here, then it should not happen.” Mehta concurred with the CJI and said, “They (protesters) think they can pressurise the system by this.” To this, Sibal retorted, “Who is pressuring who? We don’t know.” The CJI then said there were “positive points in the bill” that should be highlighted. Fresh incidents of Waqf law-related violence rocked the Bhangar area in South 24 Parganas district on April 14 and at least three people were killed and hundreds were rendered homeless in communal violence in parts of Murshidabad district, mainly Suti, Samserganj, Dhulian and Jangipur, on April 11 and 12 during protests. The violence in Murshidabad also triggered an exodus of victims to Malda district in the state and the Calcutta high court ordered the deployment of Central forces there. The Supreme Court bench said it will resume hearing on the petitions at around 2 pm on Thursday. Justice Khanna also proposed to pass an order that ex officio members could be appointed in the Waqf council and boards regardless of their faith, but others had to be Muslims. The top court questioned Mehta on how “waqf-by-user” can be disallowed, as many will not have requisite documents to get such waqfs registered. “Waqf-by-user” refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn’t a formal, written declaration of waqf by the owner. “How will you register such waqfs-by-user? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have gone through privy council judgments also. Waqf-by-user is recognised. If you undo it, then it will be a problem. The legislature cannot declare a judgment, order or decree as void. You can only take the basis,” the bench said. The solicitor-general submitted there was a large section of Muslims who did not want to be governed by the Waqf Act. The bench asked Mehta, “Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards? Say it openly.” The apex court said when a public trust was declared to be a waqf 100 or 200 years ago, it couldn’t suddenly be taken over by the waqf board and declared otherwise. “You cannot rewrite the past,” it said. Mehta submitted that a joint parliamentary committee had 38 sittings and examined 98.2 lakh memorandums before Parliament’s both Houses passed it. At the outset of the hearing, the CJI said, “There are two aspects we want to ask both sides to address. Firstly, whether we should entertain or relegate it to the high court? Secondly, point out in brief what you are really urging and wanting to argue. We are not saying there is any bar on SC in hearing, deciding pleas against the law.” Sibal, appearing for the petitioners, referred to the Waqf Amendment Act and said he was challenging the provision that says only Muslims could create waqf. “How can the state decide whether, and how, I am a Muslim or not and hence, eligible to create waqf?” Sibal asked. He added, “How can the government say only those who are practising Islam for the last five years can create waqf?” Singhvi, appearing for some of the petitioners, submitted that the Waqf Act will have all-India ramifications and pleas should not be referred to the high court. Senior advocate Huzefa Ahmadi, opposing the Waqf Act, said waqf-by-user was an established practice of Islam and couldn’t be taken away. The Centre recently notified the Waqf (Amendment) Act 2025, which got the assent of President Droupadi Murmu on April 5 after its passage from Parliament following heated debates in both Ho About 72 petitions, including those by AIMIM leader Asaduddin Owaisi, the All India Muslim Personal Law Board, Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), Congress MPs Imran Pratapgarhi and Mohammad Jawed, have been filed challenging the validity of the Act. On April 8, the Centre filed a caveat in the apex court seeking a hearing before any order was passed in the matter.
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