There is always a presumption of constitutionality in favour of any law and petitioners have to make a “strong and glaring case” for the judiciary to interfere, the Supreme Court said on Tuesday as it heard petitions against the Waqf Amendment Act
The top court’s observations came on a day petitioners challenging the 2025 law argued that it held the potential to “resurrect” suits and disputes questioning the religious character of mosques, and the Centre defended the law, saying waqf by its very nature was a “secular concept” and could not be stayed given the “presumption of constitutionality” in its favour.
The Centre also urged the top court to confine the hearing to three issues, including the power to denotify properties declared as “waqf by courts, waqf-by-user or waqf by deed”.
“There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there,” Chief Justice of India BR Gavai said when senior advocate Kapil Sibal, representing the petitioners challenging the law, began his submissions.
The law, which received presidential assent on April 5 after being passed by both the Houses of Parliament earlier, makes sweeping changes to the governance and recognition of Islamic charitable endowments, or waqfs. The Centre has defended the amendments as necessary to curb corruption, enhance transparency and ensure better regulatory oversight. But several political parties, religious organisations and civil society groups have mounted a strong push back, calling the law a direct infringement on religious autonomy and an unconstitutional imposition on the Muslim community.
The petitions, filed under Article 32 of the Constitution, challenge the law on multiple grounds, alleging that it undermines the fundamental rights of Muslims and erodes age-old waqf traditions. Petitioners have particularly targeted provisions such as the removal of “waqf by user” — a principle that historically allowed recognition of religious endowments created through usage or oral tradition — and the invalidation of oral waqfs unless backed by formal deeds. These changes, critics say, jeopardise the status of mosques, graveyards and dargahs that have existed for centuries without written documentation.
To be sure, the new law only does this prospectively, other than in cases where there is an existing dispute with the government.
Appearing before a bench also comprising justice Augustine George Masih, a battery of senior lawyers led by Sibal said the new law will reignite disputes on mosques either declared protected or where proceedings are stalled due to the top court’s interim order passed in petitions challenging the Places of Worship Act, 1991. He said provisions such as only allowing a practising Muslim to dedicate property, inclusion of non-Muslims in Waqf Council and boards were directed only against one community, which made the act “manifestly arbitrary” and unconstitutional for violating right to freedom of religion under Articles 25 and 26, and right to equality (Article 14) of the Constitution.
The Centre submitted a written note through solicitor general Tushar Mehta and said the law only sought to regulate secular aspects of waqf administration while safeguarding religious freedoms. He said there was no “grave national urgency” calling for its stay.
“It is a settled position in law that constitutional courts would not stay a statutory provision, either directly or indirectly, and will decide the matter finally. There is a presumption of constitutionality that applies to laws made by Parliament,” the note said.
The law officer will advance submissions on Wednesday.
The Centre said three issues, which were to be dealt by the bench for interim directions, was section 3(r) which prospectively removes recognition of “waqf by user” and section 3C which introduced special provisions excluding government property from being declared as waqf. It said the third issue was with regard to the composition of the Central Waqf Council and state waqf boards, allowing limited non-Muslim representation.
“The court had earmarked three issues. We had filed our response to these three issues. However, the written submissions of the petitioners now exceed several other issues. I have filed my affidavit in response to these three issues. My request is to confine it to the three issues only,” the law officer said.
But the petitioners opposed this. Senior advocate Abhishek Manu Singhvi also appearing for petitioners said, “There cannot be a truncated or a piecemeal hearing.”
The bench adjourned the hearing of the case to Wednesday to enable the Centre to respond to these charges.
Sibal cited the example of the Shahi Jama Masjid in Uttar Pradesh’s Sambhal district, saying it was a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. He referred to section 3D of the 2025 act and argued that all declarations made under the waqf act will be void if the property in question was a protected monument. “This is the extent to which this law can impact us. It is very disturbing.”
He said that section 3D along with 3E (no land belonging to members of the Scheduled Tribes shall be declared or deemed to be Waqf property) was not part of the original bill that was presented to Parliament. “The bill in Parliament did not have sections 3D and 3E and it was not before the joint parliamentary committee (JPC) either. It was introduced in the bill at the time of voting when rules are suspended. These are some of the disturbing features of this case,” Sibal said.
Singhvi said that section 3D should also be seen in the context of its impact on Places of Worship (Special Provisions) Act, 1991 that fixes the character of all places of worship as on August 15, 1947, except the Ramjanmabhoomi Babri Masjid dispute.
“Section 3D as read by government will impinge on the 1991 act as the 2025 Waqf Amendment Act has the effect of superimposing on the Places of Worship Act as a notification issued under Section 3D, declaring a protected monument, will override the character of that place of worship, which is shut off on a particular cut-off date,” he argued.
The court was informed that at present, suits questioning the religious character of mosques and other places of worship in Mathura, Sambhal and Varanasi, among other places, were put on hold by a December 2024 apex court order.
Singhvi questioned why Muslims were being singled out. “It amounts to violation of Article 15 (right against non-discrimination on grounds of race, caste, sex, religion) because of section 3D which chooses one religion,” he said.
In its April 17 order, the top court had refused to pass any interim order after recording the submission of the Centre that no waqf property, including those under waqf-by-user, shall be denotified and no non-Muslim shall be appointed to the council or boards. This order, that was to be in force till the next date of hearing, has been extended from time to time.
The petitioners, also represented by senior advocates Rajiv Dhavan, Huzefa Ahmadi and CU Singh, detailed nearly a dozen grounds for seeking an interim stay. Sibal said, “The 2025 act is framed for protection of waqf, but it is designed to capture waqf through legislative diktat which lays down no procedure.”
The Centre will make its submissions on Wednesday.