New law designed to rob Muslims of religious rights over waqf: Kapil Sibal

NEW DELHI: Urging Supreme Court to stay the Waqf Amendment Act, 2025, the Muslim side claimed that the Union govt intended to expropriate waqf properties by de-recognising unregistered properties, including 'waqf by user', and by taking out ancient monuments such as Taj Mahal and Jama Masjid in Sambhal from the ambit of waqf.

Leading a battery of senior advocates for the Muslim side, Kapil Sibal told a bench of CJI B R Gavai and Justice Augustine G Masih that the 2025 law was "framed and designed for wholesale capture of waqf properties through a legislative fiat, in a process that is non-judicial and purely executive".

When the CJI said courts prima facie presume a law enacted by Parliament to be valid, Sibal said Waqf Amendment Act was discriminatory as it had singled out the Muslim community by mandating that a waqif has to be a practising Muslim for five years to be entitled to donate his properties for waqf. "Has any other religious denomination been mandated by law to ask the same question to anyone making an endowment for charitable purposes?" he asked.

Sibal said while laws governing waqfs mandated that only Muslims could be members of Central Waqf Council and state Auqaf Boards, the new law allowed govt to nominate persons who could be non-Muslims and even form the majority in the council and boards, thus taking away the right of Muslims to manage their religious bodies.

"No religious endowment of Hindus, Sikhs or Christians allows a non-believer in that religious faith to be a member of their endowment administrative body," Sibal said, adding that these provisions in Waqf Amendment Act completely violated Muslims' right to religious activities guaranteed under Articles 25 and 26 of Constitution.

He said singling out Muslim community was violative of Article 15, which mandates that no citizen is to be discriminated against on the ground of religion. Since the law was ex facie unconstitutional, its operation needed to be stayed till the SC tested its constitutional validity, he added.

Sibal said both the Ancient Monuments Preservation Act of 1904 and its updated version of 1958 provided that any govt takeover of an ancient monument, which is a waqf property, for its preservation would not change its character or hamper Islamic religious rituals there. But the present law completely barred ancient monuments from being counted as waqf property, he added.

Sibal said if there was a dispute over waqf land, or it was claimed to be govt land, then a govt-appointed officer would decide the dispute and on the basis of his recommendation, the state would carry out necessary corrections in revenue records. "The govt's own officer deciding disputes over govt land without any prescribed procedure, without any judicial adjudication, is akin to becoming judge in its own cause," he said.

Sibal and senior advocate Rajeev Dhavan referred to the Ayodhya judgment of 2019 as 'Babri Masjid case' and said in that judgment, the SC had protected the character of ancient monuments as mandated by the Places of Worship Act, 1991. The Waqf Amendment Act could not override the 1991 Act or the SC's five-judge bench judgment, they said.

Senior advocate A M Singhvi said the govt's prejudicial argument that there had been a huge increment in waqf properties since the 2013 amendment was fallacious as waqf properties were always there and their registration on the govt portal had increased over the years. Responding to the CJI's remarks on prima facie presumption of constitutionality of the Waqf Amendment Act, Singhvi said the SC had stayed the three farm laws enacted by Parliament in 2019.