World
India
With just a few weeks left before his retirement, Chief Justice of India Sanjiv Khanna used his remaining time on the bench to tackle one of the more complex legal issues of the year — the constitutional challenge to the Waqf Act, 2025. During a detailed two-hour hearing on the matter, he asked tough questions to both the Centre and the petitioners, trying to maintain balance in a debate that touches religion, law, and property rights.
“There are some good aspects too, which neither side is mentioning,” the CJI remarked at one point during the hearing, highlighting his intent to approach the matter with fairness.
CJI Questions Government on Inclusion of Inter-Faith Members
One of the main questions raised by the bench was directed at Solicitor General Tushar Mehta. The CJI asked him to name even a single instance where Parliament had included members of one faith in the religious boards of another community.
Mehta didn’t offer a specific example, but responded, “Take it from me. I don’t want to name but take it from me that there are such cases.”
Despite this, the bench, which also included Justices Sanjay Kumar and K V Viswanathan, kept pushing for a more concrete answer.
In response, the government pointed to the Bombay Public Trusts Act, 1950, describing it as a secular law that covers various religious and charitable trusts, including Hindu temples and Muslim waqfs. But Justice Viswanathan pointed out that this might not be the best example, suggesting that laws specific to Hindu endowments could provide better comparisons.
Concern Over Scrapping Waqf by User Provision
Another critical point discussed in the hearing was the concept of “waqf by user” — an old legal idea where land or property used for religious purposes over time is treated as waqf, even without formal documentation.
Chief Justice Khanna urged the Centre to explain why the 2025 Act removed this concept altogether.
“We agree with you that there is misuse but there are also genuine cases of waqf by use,” he said, cautioning, “If you are going to denotify waqf by user, it is going to be a problem.”
This part of the law had allowed many communities to claim longstanding religious sites as waqf, even if there were no official papers, based on historical use.
Court Points Out Some Positives in the New Law
The bench wasn’t only critical of the government’s stance. It also made clear that some aspects of the 2025 Waqf Act could be beneficial.
When senior advocate Kapil Sibal brought up the removal of the exemption from the Limitation Act — a change that could prevent waqf boards from acting on old cases of encroachment — CJI Khanna said:
“The Limitation Act has both its advantages and disadvantages.”
Under the old 1995 law, the Limitation Act didn’t apply, allowing waqf boards to file cases against land encroachments without any time limit. The new law, however, brings waqf property disputes under regular legal timeframes, making it harder to reclaim old encroachments.
Debate Over Inheritance and Religious Practice
Sibal also raised concerns that the 2025 Waqf Act could interfere with Islamic inheritance laws by restricting how people distribute their property through waqfs, especially the practice of creating a waqf-alal-aulad (a waqf meant for one’s descendants).
But CJI Khanna replied, “You cannot say that Parliament cannot make a law on inheritance. We have the Hindu Succession Act.”
The Act itself states that creating a waqf-alal-aulad should not lead to any denial of inheritance rights — including those of women heirs — or any other person with a legitimate claim.
Sibal further argued that managing waqf properties could fall under the essential religious practices protected by Article 26 of the Constitution, which gives religious groups the freedom to manage their own affairs.
Justice Viswanathan, however, warned against blurring lines.
“Don’t mix the two issues,” he said firmly.
The doctrine of “essential religious practice,” which defines what parts of a religion are protected by the Constitution, is already under scrutiny in another case being heard by a larger nine-judge bench.
With only 18 working days left before his retirement on May 14, Chief Justice Khanna is trying to use his final days on the bench to bring clarity and fairness to important cases like this one.
