Presumption of validity in favour of law, make strong case for relief: SC

New Delhi: The Supreme Court on Tuesday began hearing a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025, with Chief Justice B R Gavai stressing that any request for interim relief would require a “strong and glaring” case due to the presumption of constitutionality attached to laws enacted by Parliament.

A bench comprising Chief Justice Gavai and Justice Augustine George Masih is examining pleas questioning various provisions of the 2025 amendment, particularly concerning the power to denotify waqf properties, changes in the composition of waqf boards, and inquiries into whether waqf lands are government properties.

Leading the challenge, senior advocate Kapil Sibal argued that the amended law dismantles established constitutional and historical principles governing waqf. “This is a complete departure from historical legal norms. Waqf is meant to be a permanent religious or charitable endowment, and this law opens the door for systematic expropriation of such properties by executive fiat,” Sibal submitted.

The senior counsel voiced concern over Section 3C of the Act, which authorises a designated officer to inquire whether a property is government land. During such an inquiry, the property is to be treated as non-waqf, effectively denying judicial recourse to the aggrieved. “It bypasses courts altogether. There’s no review. The law permits the executive to seize control in the name of inquiry,” he said.

Sibal also pointed to changes introduced in Sections 9 and 14 of the law, which alter the composition of central and state waqf boards, arguing that these changes allow for the inclusion of non-Muslim members in significant numbers. “Earlier, the members were elected and were from within the community. Now they’re nominated and can include a non-Muslim majority, which dilutes community control,” he told the bench.

Referring to Section 23, which permits the appointment of a non-Muslim as Chief Executive Officer of waqf boards, he said, “This is not secularism. Waqf creation is a religious act. This law allows those outside the community to manage religious endowments.”

On the provision in Section 3D, which stipulates that any waqf property designated as an ancient monument will cease to be waqf, Sibal said this violates constitutional protections under Articles 14, 25, and 26. “Even if a mosque is notified as a protected monument, that doesn’t stop religious practice. So why should waqf status be removed? Historical endowments can’t be undone this way,” he said.

The Chief Justice, during the hearing, queried whether religious practices are actually restricted at such sites. “Are citizens prevented from offering prayers just because a monument is protected?” he asked.

Sibal replied that while practices may continue in some places like Delhi’s Jama Masjid, the 2025 amendment threatens this continuity by nullifying waqf status through administrative decisions.

Senior advocate Abhishek Manu Singhvi also appeared for the petitioners and challenged a provision which mandates that only someone practising Islam for the last five years can create a waqf. “This is an arbitrary requirement. No other religion faces such a constraint for creating religious endowments,” Singhvi argued.

Singhvi also took exception to Section 3C, which, according to him, allows a property to be declared non-waqf without offering a fair route to judicial remedy. “It traps waqf beneficiaries in a legal dead-end, making it nearly impossible to reclaim the property once the government steps in,” he said.

Responding to the Centre’s submission that laws passed by Parliament are presumed constitutional and not ordinarily stayed, Singhvi cited the court’s own action on the farm laws. “Even those were stayed despite the same argument of presumption of validity. The court must step in when core rights are threatened,” he said.

The Centre, represented by Solicitor General Tushar Mehta, submitted a written note opposing the plea for interim relief and argued that waqf, being a secular concept involving property dedication, falls under the domain of regulation by the state. “Waqf, by its very nature, is a secular dedication. It is not protected as a religious practice under Articles 25 and 26. The law merely regulates administration while safeguarding freedoms,” Mehta’s note said.

The Centre further argued that no “grave national urgency” had been demonstrated to justify an interim stay on the statute. “Any breach of rights can be addressed judicially through regular proceedings. There’s no justification to halt the Act at this preliminary stage,” it said.

The government’s note addressed the three issues listed by the bench for preliminary scrutiny: the removal of “waqf by user” under Section 3(r), exclusion of government land from waqf designation under Section 3C, and the altered composition of waqf boards and the Central Waqf Council.

The Centre justified its position against recognising waqf by user — a category of waqf established merely through long-term public usage — by noting that such recognition historically lacked formal documentation and had often been used to evade legal scrutiny. “If the section saving only registered waqf by user is interfered with, it would reward non-compliance with registration requirements that have been in place for over a century,” it argued.

On changes to board composition, the Centre clarified that the Central Waqf Council allows up to four non-Muslim members out of 22, and state boards may have up to three non-Muslims among 11. “The Muslim majority is maintained. Inclusion of non-Muslims promotes transparency, especially when waqf disputes impact multiple communities,” the government said.

However, Sibal challenged even that level of representation. “Even two non-Muslims are too many. Religious endowments for Hindus or Sikhs are not managed by outsiders. Why is it acceptable here?” he asked.

Senior advocate Rajeev Dhavan, representing another petitioner, called the law an assault on secularism and community autonomy. “The amendments violate the doctrine of proportionality. There’s no rational nexus between the goals and the extreme measures adopted,” he said.

Dhavan warned that unless stayed, the amended law would allow irreversible damage to waqf properties. “There’s no way back once a property is taken over pending inquiry. The injury would be irreparable,” he added.

The hearing, which remains focused on the question of whether any part of the law should be stayed while the petitions are being adjudicated, will continue on Wednesday, when the Solicitor General is expected to advance further arguments in defence of the Act.