CJI Gavai Cautions Against Rushing to Judgment on Waqf Amendment Act, Says Courts Must Presume Constitutionality

New Delhi, May 20, 2025: In a high-stakes hearing on the constitutional validity of the recently enacted Waqf Amendment Act, Chief Justice of India BR Gavai emphasized the judiciary’s limited role in striking down legislation, stating that “there is a presumption of constitutionality” in laws passed by Parliament and that courts can interfere only in cases where a “glaring” violation is made out.

The bench, comprising CJI Gavai and Justice AG Masih, was hearing multiple petitions challenging the Waqf Amendment Act, which was passed last month amid strong opposition from several quarters. Earlier, the court had focused the case on three contentious issues: Waqf by user, nomination of non-Muslims to the Waqf Council and state Waqf Boards, and identification of government land under Waqf. The Centre had previously assured the court that it would not act on these provisions until the matter was adjudicated.

During today’s proceedings, Solicitor General Tushar Mehta noted that the petitioners’ arguments had now expanded beyond the three agreed issues. “My request is to confine it to the three issues only,” Mehta said.

This was strongly opposed by senior advocates Kapil Sibal and Abhishek Manu Singhvi, who argued that the court cannot conduct a piecemeal hearing. “The then Chief Justice Sanjiv Khanna had said the entire Act would be examined. You cannot now restrict the scope,” Singhvi said.

Sibal launched a scathing attack on the Act, calling it an unconstitutional attempt to seize Waqf lands. “This law is designed to take away Waqf property without following any due process. It even imposes a requirement that only a practising Muslim for five years can create a Waqf. What if someone is on their deathbed?” he asked, calling the provision discriminatory and intrusive.

He further warned that the amended law empowers local authorities or individuals to raise objections, which could unilaterally strip a property of its Waqf status. “A government officer becomes the judge in his own cause, and Waqf property is taken away — no questions asked,” he said.

In a broader critique, Sibal compared the status of mosques with temples under Indian law. “The State cannot fund religious institutions. Temples have a corpus of crores, but mosques and graveyards survive on private endowments. That’s why people dedicate land as Waqf at the end of their lives. This law targets that tradition.”

He also raised concerns that under the new provisions, any monument designated as “protected” by the Archaeological Survey of India would automatically lose its Waqf status — citing the example of Jama Masjid in Sambhal.

Highlighting procedural flaws, Sibal claimed that several contentious sections were never placed before the Joint Parliamentary Committee and thus bypassed parliamentary scrutiny.

The Chief Justice, however, cautioned restraint, reiterating that the judiciary cannot step in unless a “glaring case” of unconstitutionality is established.

The hearing will continue as the petitioners seek to expand the scope of judicial review beyond the initial three provisions.