One of the key concerns raised by CJI Sanjiv Khanna was the government’s decision to remove the concept of "waqf by user". This means properties that had been used as waqf for many years but were never officially recorded would no longer be considered waqf. The Chief Justice questioned why this traditional idea was being removed.

“We agree with you that there is misuse, but there are also genuine cases of waqf by use,” CJI Khanna said. He also warned, “If you are going to denotify waqf by user, it is going to be a problem.”

Another big issue was whether the government could include people from other religions in waqf boards. The Solicitor General, Tushar Mehta, was asked to name one example where Parliament has allowed interfaith members in the religious boards of another community. Mehta said, “Take it from me. I would rather not name names, but take it from me that there are such cases.” However, the judges were not satisfied and asked for a clear answer.

The government tried to justify this by pointing to the Bombay Public Trusts Act, 1950, a secular law that governs religious and charitable trusts. But Justice Viswanathan said this may not be the right example. Instead, he suggested looking at laws that deal with Hindu religious trusts specifically.

Petitioners question inheritance and religious rights

Senior lawyer Kapil Sibal, speaking for the petitioners, argued that the Waqf Act, 2025, affects Muslim inheritance laws. He said this goes against religious rights. But CJI Khanna replied, “You cannot say that Parliament cannot make a law on inheritance. We have the Hindu Succession Act.”

According to the new law, “the creation of a waqf-alal-aulad shall not result in denial of inheritance rights of heirs, including women heirs, of the waqif or any other rights of persons with lawful claims.” This means making a waqf in the name of descendants (waqf-alal-aulad) cannot stop legal heirs, including women, from getting their share of the inheritance.

Sibal also raised concerns about the removal of protection under the Limitation Act. This Act sets a time limit for filing cases. Under the 1995 Waqf Act, the Limitation Act didn’t apply, which allowed waqf boards to act against people who illegally took their land at any time. But the 2025 Act removed that protection. On this, CJI Khanna said, “The Limitation Act has both its advantages and disadvantages.”

Another major argument made by Sibal was that managing waqfs is an essential religious practice under Islam, protected by Article 26 of the Constitution. This article allows all religions to manage their own religious affairs. But Justice Viswanathan responded, “Don’t mix the two issues.”

The debate also touched on the “essential religious practice” test, a rule the courts have used in the past to decide whether a practice is truly essential to a religion. However, this test has become controversial and is currently being reviewed by a larger nine-judge bench of the Supreme Court.

 

You might also be interested in: SC questions Centre on Waqf Act: Will you allow Muslims in Hindu trusts too?