Senior advocate Kapil Sibal, representing the petitioners, contended that the Act infringes upon the Muslim community's right to manage its religious affairs, as guaranteed under Article 26 of the Constitution. He argued that waqf, being a permanent and irrevocable dedication to God, should remain beyond the purview of state intervention. Sibal likened the sanctity of waqf to the Hindu concept of moksha, emphasizing its spiritual significance.
Chief Justice Sanjiv Khanna acknowledged the religious parallels drawn, noting that the concept of moksha in Hinduism also represents an irreversible spiritual commitment. However, he emphasized the judiciary's cautious approach, stating that courts typically refrain from interfering in legislative matters unless a compelling case is presented.
A contentious provision of the amended Act requires individuals to have practiced Islam for at least five years before dedicating property as waqf. The central government, represented by Solicitor General Tushar Mehta, defended this requirement, asserting that it aligns with the Muslim Personal Law Application Act, 1937. Mehta argued that the provision ensures that dedications are made by individuals with a genuine understanding of Islamic principles.
The petitioners challenged this criterion, raising concerns about its implications for religious freedom and inclusivity. They argued that the requirement could exclude converts and those with less formal religious education from participating in waqf dedications, thereby infringing upon their rights.
Another significant point of contention is the removal of the "waqf by user" concept, which recognizes properties as waqf based on long-standing usage rather than formal documentation. The petitioners contended that this change could jeopardize numerous historical waqf properties, particularly those established centuries ago without formal deeds. The Supreme Court expressed concern over this issue, noting the potential consequences of de-notifying such properties.
The composition of the Central Waqf Council and State Waqf Boards also came under scrutiny. The amended Act allows for the inclusion of non-Muslim members in these bodies, a move the petitioners argue undermines the Muslim community's autonomy in managing its religious institutions. The Court questioned the rationale behind this inclusion, drawing comparisons with Hindu endowment boards, which remain community-specific.
In response, the central government maintained that the amendments aim to enhance transparency and accountability in the management of waqf properties. The government emphasized that the legislation focuses on the secular aspects of waqf administration and does not interfere with religious practices. It highlighted the introduction of the Waqf Asset Management System of India , an online platform designed to improve record-keeping and oversight of waqf properties.
Despite the government's assurances, the petitioners remained skeptical, arguing that the amendments could facilitate state overreach and erode the community's control over its religious endowments. They expressed particular concern over provisions allowing government officials to declare properties as government land, potentially stripping them of their waqf status without adequate judicial oversight.
The Court's observations during the hearings reflect a nuanced understanding of the complexities involved. While acknowledging the need for transparency and effective management of waqf properties, the justices emphasized the importance of safeguarding religious autonomy and ensuring that legislative changes do not infringe upon constitutionally protected rights.