'Like Moksha in Hinduism ... ': CJI on Kapil Sibal's 'waqf dedication to god' argument

Time of India

22-05-2025

File photo
NEW DELHI: Arguing against the new Waqf Amendment Act in the Supreme Court on Thursday, senior advocate
Kapil Sibal
claimed that Waqf is a dedication to God and that it "cannot be taken back once given".
Rebutting to Sibal, Chief Justice of India (CJI) BR Gavai said the same provision exists in other religions, to which the advocate said: "Others are charity to community. This is dedication to God. Once given, it can't be taken back ... to attain...".
"As in Hinduism, Moksha," CJI said, replying to which Sibal said, Yes.
"We are all striving to go to heaven," Justice Augustine George Masih said, according to Bar & Bench.
Reiterating its stance on the presumption of constitutionality in favour of laws passed by Parliament, the Supreme Court on Thursday reserved interim orders on three major issues in the waqf case after hearing arguments from both sides. One of the key questions relates to the power of denotifying properties declared as "waqf by courts, waqf-by-user or waqf by deed," as provided under the Waqf (Amendment) Act, 2025.
A bench comprising CJI Gavai and Justice Masih heard arguments over three consecutive days from senior advocates Kapil Sibal, Rajeev Dhavan, Abhishek Manu Singhvi, and Huzefa Ahmadi, who are representing those challenging the amended waqf law, and solicitor general Tushar Mehta, appearing for the Centre.
'I have already said that there is a presumption of constitutionality.' Earlier, on May 20, he remarked, 'For interim relief, you have to make out a very strong and glaring case.
Otherwise, presumption of constitutionality will be there,' the CJI stated on the concluding day, according to news agency PTI.
The bench had earlier identified three core issues raised by the petitioners, on which they sought a stay. Besides the denotification clause, the petitioners objected to the composition of state waqf boards and the Central Waqf Council, arguing that only Muslims should be members, excluding ex-officio representatives.
The third issue concerns a provision that waqf property will not be treated as waqf if the district collector, through an inquiry, determines the property to be government land.
The Centre defended the legislation, arguing that waqf is inherently a 'secular concept' and cannot be stayed due to the legal presumption in its favour. It further stated that although waqf originates from Islamic practices, it is not an essential religious practice of Islam.
Sibal described the amended law as a 'complete departure from historical legal and constitutional principles' and accused it of being a tool 'to capture waqf through a non-judicial process.' He added, 'This is a case about the systematic capture of waqf properties. The government cannot dictate what issues can be raised.'
Solicitor general Mehta, in his arguments, urged the court not to rush into staying a validly enacted statute, saying, 'It is not difficult to raise a proposition, and only because it can be argued does not justify staying a statute passed by a competent legislature.'
Referring to a clause that excludes tribal land from being declared waqf, Mehta noted that Scheduled Tribes in such areas are a constitutionally protected class and the law respects that protection.
The bench posed a question about whether a religious identity could override cultural protections, particularly if waqf properties are created on tribal lands. In response, Mehta said, 'Waqf is to Allah. It is irrevocable.
If found unconstitutional later, it can be quashed. But creating an irreversible waqf in the meantime has far-reaching consequences.'
Mehta also defended the provision requiring a person to have practised Islam for at least five years before creating a waqf, saying it was aimed at preventing fraudulent declarations.
'If a Hindu wants to create a charitable institution, there are existing legal routes. Why use waqf?' he asked.
He added that non-Muslims could contribute to waqf properties through donations but not by creating them. 'There is a difference between creating a waqf and donating to one. A Hindu can donate to a waqf, but cannot create one.'
Senior advocate Rakesh Dwivedi, appearing for the Rajasthan government, also backed the Centre, stating that the concept of waqf by user was not grounded in Islamic law but rather derived from legal principles such as adverse possession after Independence.
In his rejoinder, Sibal argued that the amended law is 'ex facie arbitrary, irreversible, and expropriatory.' He criticized Section 3C of the Act, which he said deprives Muslims of their rights even before any determination is made regarding whether a property is government land or waqf. 'There is no law laid down in the statute as to how such determination will take place,' he said, questioning the procedural fairness of the provision.
Dhavan argued that the Centre, through this law, 'liquidated the concept of waqf.' He contended that the law infringes on both individual and institutional religious freedoms under Articles 25 and 26 of the Constitution.
Responding to the claim that waqf by user is a legal creation that can be revoked, Dhavan stated, 'The law does not create waqf by user—it only recognises it.'