New Delhi: The Supreme Court on Wednesday continued hearing the constitutional challenge to provisions related to the Waqf by user, with the Chief Justice of India (CJI) and several senior advocates making significant observations on religious rights, statutory changes, and historical practices.
CJI's Observations: Chief Justice Sanjeev Khanna during the proceedings, remarked:
“Sorry, we don't want to interrupt, but we are told that the Delhi High Court is built on Waqf land... We’re not saying all Waqf by user is wrong, but there is a genuine concern.”
He also questioned, "What is the issue with registration? Is the Collector's decision amenable to judicial review?”
Abhishek Manu Singhvi argued that "four out of eight lakh Waqf properties are by user. With one stroke of the pen, they are being erased.”
He cited para 118 of the Ayodhya judgment, saying Waqf by user is an ancient concept, asking, “You deleted Section 2(r)(i), but can you erase the foundation of a judgment?”
On Section 3(iii)(da), he said: “Collector has been defined too broadly.”
Quoting the term ‘contrivance’, he called it "a delightfully great word", used to describe how the new system could create bureaucratic hurdles.
Singhvi emphasized that Article 32 of the Constitution must be invoked when rights under Articles 25 and 26 are in question.
“This is not a case to be sent to the High Court.”
Senior Advocate Rajeev Dhavan stressed that Waqf is essential and integral to Islam. Particularly, charity is a central part of Islamic practice. That’s the basis of this constitutional challenge.
He also noted that earlier, the CEO of the Waqf Board was required to be Muslim, but that requirement has now been removed.
Kapil Sibal raised practical difficulties and said, “Waqf by user is an integral part of my religion. It’s recognised in the Ram Janmabhoomi judgment.”
He warned that under Section 7(A), proving such Waqf could take 20 years and that the new law requires registration within two years, which would disadvantage older Waqfs without deeds.
“Many Waqf properties were encroached upon previously. There was no limitation earlier.”
The CJI interjected by saying, “But the Limitation Act also has its advantages.”
Senior Advocate CU Singh shifted focus from essential religious practices to the legal framework under Article 26 and said, “It is not necessary to prove a practice is essential to religion. There is a distinction between religious and charitable purposes. Article 26 provides broader protection.”
The CJI pointed out the limitations under Article 26(d), stating it is “subject to law.”
Advocate Sanjay Hegde, drawing from history, said, “You are from Punjab, Your Lordships would know—Amritsar was not under Sikh control once, and the Akali Dal had to start a whole movement to regain it.”
Advocate Huzefa Ahmadi questioned, Changes in the definition of "practising Islam" under Section 3(r). and the effect of the new provision which could suspend fundamental rights for five years.
“Are they going to ask me, Mr. Ahmadi, do you pray five times a day? This creates vagueness.”
He added that Waqf has long been recognised as a form of trust, to which the CJI responded, “Trusts have certain benefits.”
Solicitor General Tushar Mehta, appearing for the Union, defended the legislation by stressing, “This is a statute passed after intense consultation—38 sittings of a Joint Parliamentary Committee, 29 lakh suggestions, visits to major cities.”
The statutory scheme is being misrepresented. In Islamic law, a waqif dedicates property to Allah for charity, governed by a mutawalli. Like how a Hindu may create a trust and say all trustees will be Hindu.”
When asked if Waqf by user now stands void even if validated by courts earlier, Mehta replied:
