Opinion What are the key issues in the challenge to the new Waqf law

The petitioners include All India Majlis-e-Ittehadul Muslimeen MP Asaduddin Owaisi, TMC MP Mahua Moitra, RJD MP Manoj Kumar Jha, Samajwadi Party MP Zia Ur Rehman, Congress MPs Imran Masood and Mohammad Jawed, former MP Udit Raj, principal of Darul Uloom Deoband Maulana Mahmood Asad Madani, the YSR Congress Party, and the Communist Party of India.

In the hearing that lasted for two hours, the Bench questioned the Centre, while also telling the petitioners that “there are some good aspects to the law”.

Senior Advocate Kapil Sibal, who led the arguments for the petitioners, essentially framed the law as violative of Article 26 of the Constitution, with the Parliament having interfered on “the essential and integral parts of the faith.” Article 26, a fundamental right under Part 3 of the Constitution, guarantees the freedom to manage the religious affairs of the citizens, and is subject to only three restrictions — public order, morality, and health.

Some key issues

The petitioners flagged a number of issues with the 2025 law. These include the following.

Doing away with concept of “Waqf by use”: “Waqf by use” simply means that land used for Muslim religious or charitable purposes for a long time can be deemed to be a Waqf even if it is not registered as such.

The 2025 law does away with the concept of Waqf by use (which it refers to as “Waqf-by-user”) for future dedications, and restricts it only to properties that are already registered as Waqf. It further states that where there is a dispute, or if a property is allegedly government-owned, that land in question will not be treated as Waqf-by-use.

The government’s argument is that land is often encroached upon in the name of Waqf, making it necessary to do away with the legal mechanism for this to happen. However, the move raises questions over the status of several Waqf-by-use properties, which have long contained mosques or graveyards but not been registered as Waqfs.

The petitioners argued that by its nature, Waqf-by-use lands are difficult to register. CJI Khanna seemed to echo this sentiment, asking the Centre how can someone register a land that has been used as Waqf for, say, 300 years.

“As far as Waqf-by-user is concerned, it will be very difficult to register. So, there is ambiguity there. You may have a point that [it’s] being misused… but at the same time, there is genuine Waqf-by-user also,” CJI Khanna said.

The petitioners also stated that Waqf by use as a concept has long been recognised by courts, something that was acknowledged in the apex court’s landmark 2019 Ayodhya judgement.

Powers of district collector: The SC also mentioned it is considering staying another provision involving powers of the district collector, which could have a bearing on Waqf-by-use lands.

Under the 2025 law, if the district collector identifies land, currently in use as a Waqf, as government land, then it ceases to be Waqf land till a court decides the dispute. This power, which flows from a crucial proviso to Section 3(c) of the Act, could alter the status of Waqf land even before a court has decided its status.

Although this provision has not been stayed yet, Thursday’s order notes the Centre’s statement that “the character or status” of any Waqf will not be changed.

Inclusion of non-Muslims in Waqf boards: The petitioners argued that the 2025 law, which allows non-Muslims to be part of Waqf boards and the Waqf council, is violative of Articles 26(b), 26(c), and 26(d) of the Constitution which guarantee a community’s right to “manage its own affairs in matters of religion”, “own and acquire movable and immovable property”, and “administer such property in accordance with law”, respectively.

While the Centre argued that allowing non-Muslims will not affect the veto rights of the community when it comes to dealing with Waqfs, the petitioners said that “even one [non-Muslim] is too many.”

The Bench questioned the Centre on the issue, asking Solicitor General Tushar Mehta to name one instance in which Parliament allowed members of another faith into boards managing the religious affairs of a community. “Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards? Say it openly,” the CJI asked.

This is one of the provisions that the SC said it was likely to stay. Thursday’s order recorded a statement by Mehta that if the “Government of any State or the National Capital Territory of Delhi makes any such appointment(s), the same may be declared void.”

Applicability of Limitations Act: Sibal also challenged a provision in the 2025 law that allows the applicability of the Limitation Act with respect to Waqf properties. 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 the Limitation Act which allowed Waqfs to act against encroachments on its properties without a specific time frame. The 2025 law removed that exception. To this, CJI Khanna said that the “Limitation Act has both its advantages and disadvantages”.