A bench comprising Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K V Viswanathan also recorded the assurance of solicitor general Tushar Mehta, representing the Centre, that no appointments in the central Waqf council and boards will be made in the meantime.
New Delhi: Taking note of the Centre's submissions that non-Muslims will not be appointed to Central waqf councils and state waqf boards and waqfs-by-user or deeds will not be denotified until the next date of hearing, the Supreme Court on Thursday deferred an interim order and directed the Union government to file its response on the pleas challenging the Waqf (Amendment) Act 2025 within a week.
The apex court recorded the assurance by Solicitor-General Tushar Mehta and posted the matter for hearing on May 5. It allowed the petitioners to file their rejoinders to the Centre's reply within five days of the service of response by the Union.
The top court said, "We clarify that the next hearing (May 5) will be for the preliminary objections and for an interim order."
A three-judge bench comprising Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and K.V. Viswanathan said, "During the course of the hearing, the solicitor-general states that the respondent (Union of India) would like to put in a short response within seven days. He further states and assures that till the next date of hearing, no appointments will be made to the council and boards under sections 9 and 14 (of the Act)."
Mr Mehta, the court recorded further, had also said that till the next date of hearing, waqf properties, including “waqf-by-user” already registered or declared by way of notification, shall not be disturbed and denotified.
The Centre strongly opposed the top court’s proposal to pass an interim order against the denotification of waqf properties, including “waqf-by-user”, besides staying a provision allowing the inclusion of non-Muslims in the Central waqf councils and boards.
Mr Mehta urged the bench that a law passed by Parliament "with due deliberations" should not be stayed without hearing the government.
Allowing Mr Mehta’s contentions, the top court granted a week's time to the Centre to file a preliminary response to the pleas challenging the validity of the contentious Waqf law.
"If your lordships will say something about 'waqf-by-user', what will be the fallout? We, as a government and Parliament, are answerable to the people," Mr Mehta said.
The bench made it clear that if the registration of any waqf property had taken place under the erstwhile 1995 Act, then those properties cannot be denotified till further hearing.
The CJI said: "We don't want the position to change. Parliament makes laws, the executive decides and the judiciary interprets."
While hearing the matter on Wednesday, the bench proposed to stay certain key provisions of the Act, including the power to denotify properties declared as waqf-by-courts and the inclusion of non-Muslims in the Central waqf council and boards.
On Thursday, Mr Mehta asked whether the court might consider staying, directly or indirectly, the Act based upon some prima facie or tentative reading of some of the sections. "If your lordships are going to stay a statutory provision, it by itself is rare. We will have to take your lordships to the history of legislation, followed by amendment,” he said.
The Solicitor-General said the government received several representations, which ultimately resulted in the amended Act.
Opposing an interim stay, the law officer referred to certain instances and said private properties were usurped as waqf in several places.
Dubbing it a "considered piece of legislation", Mr Mehta said the pleas were filed before the presidential assent and taken up immediately by the bench.
Staying the provisions of the Act may be a "harsh step" and the government should be allowed to place its preliminary reply, Mr Mehta said.
"Allow me to place within a week my preliminary reply with some materials, documents and statutes to show," the solicitor-general said, "and in one week, nothing will change".
The top court said: "We are not deciding the matter finally."
Senior advocate Rakesh Dwivedi, representing a state government, said, "Heavens are not going to fall if the interim order is not passed for a week or so."
Mr Mehta further assured of not making appointments in the respective waqf boards even if some of the states were not before the court.
The top court has also decided to hear only five of the total number of pleas before it and titled the case: "In Re: Waqf (Amendment) Act 2025".
While appointing three lawyers as the nodal counsel, the Supreme Court asked the advocates to decide among themselves who was going to argue.
The bench made it clear that a writ petition challenging the 1995 Waqf Act and the amendment made in 2013 should be separately shown in the causelist.
On Wednesday, the top court took exception to the inclusion of non-Muslims in the Central Waqf Council and boards and asked the Centre whether it was willing to include Muslims in Hindu religious trusts.
The CJI had proposed to issue the notice and to pass an interim order, saying it will "balance the equities".
Observing some provisions could have "grave ramifications", particularly those that potentially undermine judicially recognised waqf properties, the CJI proposed the order.
"The properties declared as waqfs by the courts should not be denotified, whether they are by waqf-by-wser or waqf-by-deed, while the court is hearing the challenge to the Waqf Amendment Act 2025," CJI Khanna proposed.
"How will you register such waqfs by user? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have gone through Privy Council judgments. Waqf- by-user is recognised. If you undo it, then it will be a problem. The legislature cannot declare a judgment order or decree void. You can only take the basis," the bench had said.
"Waqf-by-user" refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn't a formal, written declaration of waqf by the owner.
The Centre notified the Act recently, which received the presidential assent on April 5.
About 72 petitions, including those by AIMIM leader Asaduddin Owaisi, the All India Muslim Personal Law Board, Jamiat Ulama-i-Hind, the Dravida Munnetra Kazhagam, Congress MPs Imran Pratapgarhi and Mohammad Jawed, among others, have been filed challenging the validity of the Act.
