Hearing the bunch of petitions challenging the Waqf Amendment Act, the Supreme Court today asked the Centre tough questions on multiple provisions of the new law, especially its provisions for ‘Waqf by user’ properties. The court also flagged the provision to include non-Muslims on the Central Waqf Council and asked the government if it would allow Muslims to be part of Hindu endowment boards.

The bench, led by Chief Justice Sanjiv Khanna and comprising Justice Sanjay Kumar and Justice KV Vishwanathan, was hearing 73 petitions challenging the new Waqf Act, which has sparked protests in several parts of the country.

At the outset, the Chief Justice told the petitioners that two questions needed to be addressed. The first was whether the Supreme Court would send the petitions to a high court and what points the petitioners intend to argue.

Senior Advocate Kapil Sibal, appearing for one of the petitioners, said many provisions in the new law violate Article 26 of the Constitution, which guarantees the freedom to manage religious affairs. Mr Sibal also flagged the powers the new law gives to the Collector. He argued that the Collector is a part of the government and if he plays the role of a judge, it is unconstitutional.

Mr Sibal then mentioned ‘Waqf by user’ – a provision under which a property is treated as Waqf based on its long-term use for religious or charitable purposes, even without formal documentation. The new law adds an exemption: this won’t apply to properties that are in dispute or are government land.

Mr Sibal said that ‘Waqf by user’ is an integral part of Islam. “The problem is, if a waqf was created 3,000 years ago, they will ask for the deed,” he said.

Senior Advocate Abhishek Singhvi, also appearing for a petitioner, said that 4 lakh Waqf properties out of the total 8 lakh properties in the country are ‘Waqf by user’. At this point, the Chief Justice intervened, “We are told Delhi High Court is built on Waqf land. We are not saying all waqf by user is wrong, but there is genuine concern,” he said.

Mr Singhvi then said they are seeking a stay on some provisions and not the entire Act.

Appearing for the Centre, Solicitor General Tushar Mehta said the law was passed after detailed and elaborate debates in Parliament. He said a joint parliamentary committee examined it and it was passed by both Houses again. 

The Chief Justice then asked Mr Mehta to focus on the ‘Waqf by user’ provisions in the new law. “Are you saying that if a ‘Waqf by user’ was established by a (court) judgment or otherwise, today it stands void?” The Chief Justice mentioned that many mosques part of Waqf were built in the 13th, 14th and 15th centuries and it is impossible to present documents for them.

The bench then said that “there will be an issue” if the government is going to denotify ‘Waqf by user’. “The legislature cannot declare a court’s judgment would not be binding,” it said, adding that while there are instances of “misuse”, “there are genuine Waqf too”.

“How will you register such ‘Waqfs by user’ who have been there for long? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones too. I have gone through the Privy Council judgments. ‘Waqf by user’ is recognised. If you undo it, then it will be a problem,” the Chief Justice said.

The court then moved to the composition of the Central Waqf Council under the new law. The Chief Justice then asked a significant question. “Mr Mehta, are you saying you will allow Muslims to be part of Hindu endowment boards? Say it openly”.

The Chief Justice also noted that it was “very disturbing” that violence was taking place over the new law. Mr Mehta then said “they think they can pressurise the system”. To this, Mr Sibal replied that it is not known “who is pressuring”. The Chief Justice noted that the positive points in the law must be highlighted. The matter will be heard again tomorrow.