New Delhi

The Central government on Thursday assured the Supreme Court that waqfs — including waqfs by user — whether registered or notified, will not be de-notified or altered during the pendency of the matter. Appearing for the Union of India, Solicitor General Tushar Mehta made this assurance as the court continued hearing over 70 petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025.

"During the course of the hearing, Solicitor General states that the Union would like to put a response within seven days. He further assures the court that no appointments will be made to the Waqf Council and waqf boards under Sections 9 and 14 (of the newly implemented Act). Till the next date of hearing, waqf, including waqf by user, already registered or declared by way of notification, shall neither be de-notified or the collector will change. We take the statement on record," the top court recorded in its order.

The next hearing has been scheduled for May 5 at 2 PM. The court also formally renamed the case as In Re: Waqf Amendment Act. The bench made it clear that the hearing would only be for directions and interim orders if any.

With an to streamline proceedings, the highest court today directed that only five petitioners’ counsel will be allowed to appear and argue in the next hearing. With over 70 petitions currently pending, the bench said the remaining matters will be treated as supporting applications tagged to the main five.

“Only five writ petitioners to be in court from next hearing. We only want five here. You select five,” the bench said, granting liberty to the petitioners to mutually decide who among them will present arguments.

The court made it clear that all other petitions would be treated as connected applications and disposed of accordingly.

At the outset of the hearing, Solicitor General Mehta urged the apex court to refrain from issuing an interim stay on the amended legislation. “Your lordships are taking a serious and harsh step by staying directly or indirectly statutory provisions without proper assistance,” Mehta submitted, requesting a week’s time to submit documents justifying the amendments.

“We have received lakhs and lakhs of representations, which contributed to some of these amendments. Villages were taken as waqfs. Private properties were taken as waqfs. This affects a large number of innocent people,” he added.

Chief Justice of India Sanjiv Khanna responded, “Mr. Mehta, we have a particular situation. We pointed out certain infirmities. We also said there are some positive things. But we do not want the situation prevailing today to change. There are provisions such as five years practice of Islam — we are not staying that. Yes, you are right. There is a thumb rule that courts will not stay legislations ordinarily. But there is another thumb rule — when the petition is pending before the court, the situation which is prevailing should not change so that the rights of persons are not affected.”

In response, SG Mehta reiterated his request for more time. The bench, comprising CJI Sanjiv Khanna, Justices Sanjay Kumar and KV Viswanathan, agreed — on the condition that no non-Muslim members be appointed to the Central Waqf Council or state waqf boards, and that no changes be made to existing waqfs.

While the SG agreed to the conditions, the CJI pointed out that the SG could only speak for the Union, not the states.

Mehta responded, “The court can order that if any state makes such appointments, it would be void.”

During Wednesday's hearing, the court had proposed to pass an interim order on three points:

1. No waqf property — whether by user or by deed — will be de-notified during the hearing.

2. The proviso stating that waqf status will be suspended during investigation by the collector will not be enforced.

3. All appointed members of waqf boards and the Central Waqf Council must be Muslim, except ex-officio members.

Representing petitioners, including MPs Asaduddin Owaisi and Manoj Jha, Senior Advocate Kapil Sibal argued that the 2025 amendments are per se “unconstitutional”. He highlighted the omission of the ‘waqf by user’ clause and the inclusion of non-Muslims in waqf boards as especially problematic.

“They will ask us if there was a waqf created 300 years ago, and to produce the deed. Many of these properties were created hundreds of years ago, and there will not be any documents,” Sibal said, noting that properties like Jama Masjid in Delhi were waqfs by user, often without written deeds.

When the SG responded, CJI Khanna pressed him, “Are you now saying that waqf-by-user, even if established by judgments of the courts or otherwise without dispute, are void now?”
“If registered, no (they will remain as waqf if they are registered),” Mehta replied.

The court also expressed concern over the provision that a property ceases to be considered a waqf once the collector initiates an inquiry. “Is that fair?” CJI Khanna asked. Mehta clarified that the use of the property as waqf is not stopped, only that it temporarily will not receive waqf-related benefits.

On the controversial issue of nominating non-Muslims to waqf boards, the CJI on Wednesday had asked pointedly, “Mr Tushar Mehta, are you arguing that as far as the Hindu endowments or Hindu religious bodies are concerned, you will allow minorities, including Muslims, to be a member of the board or council? Please say that very openly.”

Mehta responded that the current structure allows for two non-Muslim members in addition to ex-officio members, citing the Joint Parliamentary Committee report. He said the existing boards will remain unchanged until their terms end.

The batch of petitions challenges both the Waqf (Amendment) Act, 2025, and in one case, the parent 1995 Act. Five BJP-ruled states — Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra — have filed intervention applications supporting the legislation.

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The common challenges raised include: removal of the ‘waqf by user’ provision, inclusion of non-Muslims in waqf boards, limiting women members to two, imposing a five-year practicing Muslim condition, restrictions on waqfs over ASI-protected and Scheduled Areas, changes affecting waqf-alal-aulad and property disputes and applying the Limitation Act to waqf-related cases.

As the case proceeds, the Supreme Court has signalled it will tread cautiously — balancing legislative authority with the need to ensure the current legal status of waqf properties and religious representation is not disturbed pending its decision.