New Delhi: Senior advocate Kapil Sibal on Wednesday argued in the Supreme Court that the Waqf Amendment Act, 2025, infringed upon the religious freedom of Muslims in managing their religious and charitable institutions.
Arguing before a bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan, Sibal referred to the contentious provisions and listed out the objections of Muslim bodies and other petitioners.
The top court, during the course of the hearing, proposed to stay certain key provisions of the Act including the power to denotify properties declared Waqf by courts and inclusion of non-Muslims in central Waqf councils and boards.
“How can the state decide whether and how, I am a Muslim or not, and hence, eligible to create a Waqf?” Sibal asked.
The new law says a person has to be a practising Muslim for the last five years to create a Waqf, he added.
Sibal referred to Article 26 of the Constitution, saying subject to public order, morality, and health, every religious denomination has the right to establish and maintain institutions for religious and charitable purposes and manage its own affairs in matters of religion.
“Subject to public order, morality and health, every religious denomination or section thereof shall have the right to establish and maintain institutions for religious and charitable purposes. That’s my constitutional right, subject to these three limitations, to manage its own affairs in matters of religion that is an essential, integral part of a religious practice,” he said.
He said Muslims have the right to own and acquire property as Waqfs and legally administer them.
“These are fundamental rights and any law impinging on essential religious practices or property rights must be reasonable and proportionate,” he added.
Sibal referred to the provision mandating five years of Islamic practice to create Waqf.
“Under the amended provision, any individual establishing a Waqf must prove that they have practised Islam for at least five years,” he asked, “but why should the state be the judge of how Muslim I am? If I am born a Muslim, my personal law should automatically apply to me.”
He then referred to an amended provision, which deals with the recognition of “Waqf by user” and said it preserves pre-amendment “Waqf by user” properties but restricts future recognition.
“This denies me the right to create a Waqf in accordance with my faith,” he said.
Such a restriction, he said, was arbitrary and impinged on religious freedom.
“Waqf by user” refers to a practice where a property is recognised as a religious or charitable endowment (Waqf) based on its long-term, uninterrupted use for such purposes, even if there isn’t a formal, written declaration of Waqf by the owner.
He then referred to Section 3C which permits the government to “unilaterally” determine whether a disputed property is government land, which, if so determined, would not be considered Waqf.
“How can a government officer—essentially a judge in his own cause—be empowered to decide on property ownership in a dispute involving the government itself?” Sibal asked.
The senior lawyer then referred to Section 3D of the amended law and said it nullified Waqf declarations if the property was already designated a protected monument under the heritage laws.
Sibal raised concerns over retroactive invalidation, stating that many religious sites also fall within protected zones.
“What happens to mosques that are part of such monuments?” he asked.
He highlighted a provision barring any waqf declaration on land belonging to scheduled tribes under the Fifth and Sixth Schedules of the Constitution.
“This is overbroad and disproportionate,” he said.
“Not all tribal areas are the same, and many scheduled tribe Muslims are impacted. It’s not a balanced provision,” Sibal added.
He referred to the composition of the Central Waqf Council as a focal point and said inclusion of non-Muslim members, especially in high numbers, dilutes the religious character of a body meant to oversee Muslim charitable endowments.
“Unlike Hindu and Sikh religious boards, where only members of the respective faith are represented, this council includes MPs and professionals who need not be Muslims,” he said, “and this violates the guarantee in Article 26 of religious denominations managing their own affairs.”
He also said the Waqf Act, in its current form, represented a “parliamentary overreach” into the domain of religious self-governance.
“Parliament may make laws, but they cannot interfere with the essential and integral aspects of my religion,” he said.
Sibal added, “This Act amounts to state control over 200 million people’s faith in the country.”
