In a dramatic turn during the hearing on the constitutional validity of the Waqf (Amendment) Act, 2025, the Supreme Court witnessed a fiery exchange between Chief Justice of India Sanjiv Khanna and Solicitor General Tushar Mehta while identifying the underlying tensions between judicial impartiality and executive action in matters of religious autonomy.
“Your Lordships Cannot Hear This Case” — Line That Lit the Fire
It all began when the Constitution Bench, headed by CJI Khanna and comprising Justices PV Sanjay Kumar and KV Viswanathan, questioned the inclusion of non-Muslim members in Waqf Boards and the Central Waqf Council. Pressed for clarity, SG Mehta, representing the Centre, remarked:
“Then this bench also cannot hear the case.”
The comment, which implied that the religious identities of the judges could be grounds for recusal, was met with immediate and stern pushback.
“When We Sit Here, We Lose Our Religion”
CJI Khanna, visibly taken aback, responded with one of the day’s most powerful lines:
“What! When we sit over here, we lose our religion. For us, both sides are the same.”
He continued, drawing an analogy that struck at the heart of institutional fairness:
“Why not have non-Muslims also in the advisory board of Hindu endowments then?”
Justice Sanjay Kumar echoed the concern, questioning the logic behind the government’s stance:
“Is Tirupati board governed by non-Hindus? Give us examples.”
The justices’ remarks laid bare the asymmetry in the treatment of religious institutions and raised constitutional alarms about the State’s approach to minority rights and community control.
Balancing Faith, Law, and Power
At the centre of the debate lies a constitutional question: Can the State interfere with the internal management of religious institutions under the garb of inclusivity or administrative efficiency?
Senior Advocate Kapil Sibal, appearing for the petitioners, argued passionately:
“This Amendment violates the community’s right under Article 26 to manage its own religious affairs.”
He was joined by a formidable line-up of legal minds, including Abhishek Manu Singhvi and Rajeev Dhavan, who collectively argued that the Act dilutes the autonomy of Muslim religious institutions under a purportedly secular framework.
SG Mehta, in defence, offered a conciliatory gesture, stating:
“I can put it on affidavit that no more than two members would be non-Muslims.”
But the Court was not convinced. Observing the present composition, it noted:
“As per the Act, 8 members are Muslims. Two judges may not be Muslims. Then the rest are non-Muslims.”
On Waqf by User: “Undoing This Will Create Problems”
The Bench also took up the contentious issue of ‘waqf by user’—properties deemed waqf based on continued religious use rather than deed.
While acknowledging the potential for misuse, the Court observed:
“Undoing ‘waqf by user’ will create problems; there has been some misuse of this.”
Yet, the judges maintained that properties already declared as waqf by a court must not be de-notified during the pendency of the challenge. The Court proposed an interim order that would:
- Protect such properties from being classified as non-waqf;
- Stay the operation of the proviso that allows collectors to hold waqf status in abeyance;
Ensure that only Muslims, apart from ex officio members, are appointed to Waqf Boards and the Central Waqf Council.
“Our interim order will balance equities,” said the Bench. “We are mindful of the constitutional and community sensitivities involved.”
A National Battle: Who Controls Religious Institutions?
The case has seen a wide spectrum of petitioners and supporters. Prominent political leaders including Asaduddin Owaisi, Mahua Moitra, Manoj Kumar Jha, and Md. Jawed, along with civil society organizations like the All India Muslim Personal Law Board, Jamiat Ulema-i-Hind, and Association for Protection of Civil Rights, have joined the petitioners’ side.
Meanwhile, the Central Government, backed by states like Rajasthan, Gujarat, Haryana, Assam, Uttarakhand, and Chhattisgarh, is defending the Act. A caveat has also been filed by the Centre to ensure no interim relief is granted without hearing its position.
The Waqf Amendment Bill, along with the Mussalman Wakf (Repeal) Bill, was passed in Parliament after intense debate—288 voting in favour, and 232 against, has laid the foundation for what has now become a full-blown constitutional confrontation.
What Lies Ahead?
With the Court set to resume the hearing, the case is not just about administrative procedures or religious endowments—it seemingly has become a referendum on the limits of State intervention in community-driven religious institutions.
As CJI Khanna emphatically put it, “This is about the Constitution. We are here to protect rights—not religion.”
REFERENCE: http://lawchakra.in/supreme-court/waqf-row-cji-khanna-replies-sg-mehta/
About Author
Tanishq, a law student at the Department of Legal Studies and Research, Barkatullah Vishwavidyalaya, Bhopal, is a budding legal writer with a sharp eye for evolving legal landscapes. Passionate about Intellectual Property Rights, Constitutional Law, and Women and Child Safety Laws, Tanishq actively explores contemporary legal nuances through writing and research.