Judicial Caution Needed on Waqf

During the tense and contentious arguments in the Supreme Court over the recently passed Waqf (Amendment) Bill, a bench headed by Chief Justice Sanjiv Khanna wanted to know if non-Hindus could be appointed to Hindu religious charitable establishments. The query was posed in the context of the new law man­dating that two non-Muslims be appointed to the Central Waqf Council and in state Waqf boards.

Responding to the poser, Solicitor General Tushar Mehta said execu­tion of statutory provisions and the administration of such a Hindu body may be carried out by Hindus or non-Hindus. A distinction, he said, needs be drawn between administration of properties—the issue at hand in case of the Waqf law—and the carrying out or practice of religious affairs. As the solicitor general underlined, Waqf boards and the Central Council are tasked with administering properties designated as endowments under the law.

In the 22-member Central Council, 10 must be from the Muslim community. Section 9, subsection 2 provides for the Union minister in charge of Waqf as ex-officio chairper­son, three MPs of which two will be from Lok Sabha, two former judges of either the Su­preme Court or a high court, one advocate of eminence, four eminent persons from the fields of administration or management, financial management, engineering of architecture or medicine. Pre­sumably, suitable candidates from the Muslim community can be found. That also fulfils the law's mandate for diversi­fied representation.

The Supreme Court also questioned if the deletion of the much-misused and arbitrary "Waqf by user" provision can be applied retrospectively, wondering that if such a clause existed previously, what would be the impact on hundreds, if not thousands, of properties. The rational answer is that even before the 2024 Bill was passed by Parliament, Waqf proper­ties needed to be registered by their administrators. Regis­tered properties, the solicitor general said, are not affected by the change in the law.

Is it wise to consider the worst of scare scenarios to stay a provision that will knock the bottom out of the new law? Whether a prop­erty is the government's or not must, after all, be decided on the basis of the revenue record. By entertaining the argument that mosques and other religious endowments that go back to the 17th and 18th centuries may not be able to produce proof of being Waqf, the court could end up defeating the very purpose of the amended Act—to ensure illegal land grab in the name of Waqf is prevented and, where possible, reversed at least in relation to govern­ment land.

The Bill was introduced in Lok Sabha in August 2024 and was then examined by a joint committee of Parlia­ment that submitted its report on January 30, 2025. It was debated vigorously in Lok Sabha and Rajya Sabha from April 2-4 before being passed by strong majorities. Lok Sabha voted 288-232 for the Bill and at Rajya Sabha, the result was 128-95. The Supreme Court is bound to examine the constitutional­ity of the Act approved by the president. But it should resist the temptation to tinker with legislative provisions in a contrived balancing act that is unlikely to please anyone.

The acceptance of 25 amendments recommended by the joint parliamentary committee of the govern­ment is testimony to the thorough examination the Waqf Bill was subjected to. If the Opposition argues that its amendments were ignored, it needs to be kept in mind that efforts intended to undo the proposed reforms of the Waqf law would have defeated the very purpose of the amend­ments. The Supreme Court bristled at Mehta's suggestion that the bench would not be able to hear the matter should the argument challenging inclusion of non-Muslims be taken to its logical conclusion.

But that is what petition­ers challenging the Act are in effect demanding.