Waqf Amendment Act: CJI pushes govt for answers, draws some lines for petitioners

The CJI asked Solicitor General Tushar Mehta to name one instance where the Parliament had allowed inter-faith members in boards dealing with religious affairs of another community. When Mehta said, “Take it from me. I don’t want to name but take it from me that there are such cases,” the bench of CJI Khanna and Justices Sanjay Kumar and K V Viswanathan continued to push for an answer.

The government cited the Bombay Public Trusts Act, 1950, a secular legislation that applies to temples, waqfs and other religious and charitable trusts. Justice Viswanathan said that may not be an appropriate example and, instead, referred to laws that deal with Hindu religious and charitable endowments.

CJI Khanna also pushed the government to explain why the concept of waqf by user, that has been in the books for decades, has been done away with. “We agree with you that there is misuse but there are also genuine cases of waqf by use,” Khanna said.

“If you are going to denotify waqf by user, it is going to be a problem,” CJI added.

For the petitioners too, the bench made several prima facie observations that some aspects of the law may be a “good thing.”

When senior advocate Kapil Sibal brought up the applicability of the Limitation Act to waqf properties, CJI Khanna said that the “Limitation Act has both its advantages and disadvantages.”

The Limitation Act, essentially, bars parties from making a legal claim, say, against encroachment, after a specific period of time has lapsed.

The 1995 Waqf Act had specifically excluded the application of Limitation Act which allowed waqf to act against those encroaching its properties without any time frame. However, the 2025 law removed that exception, potentially taking away the waqf’s right to act against encroachment.

When Sibal raised the issue of the 2025 law interfering with Muslim inheritance, CJI Khanna said: “You cannot say that Parliament cannot make a law on inheritance. We have the Hindu Succession Act.”

The 2025 Act states that “the creation of a waqf-alal-aulad shall not result in denial of inheritance rights of heirs, including women heirs, of the waqif or any other rights of persons with lawful claims.”

Sibal argued that the management of waqfs could form part of essential religious practice of Islam protected by Article 26 of the Constitution.

Article 26 guarantees for the freedom to manage the religious affairs of the citizens and is subject to public order, morality and health.

“Don’t mix the two issues,” Justice Viswanathan said.

The essential religious practice test is a contentious doctrine evolved by the court to protect only those religious practices that it deems as essential to the religion. A challenge to this doctrine is currently pending before a larger nine-judge bench.

CJI Khanna has 18 working days left and is due to retire on May 14.