Can Muslims be appointed to run Hindu religious bodies?

On the first day of hearing multiple petitions against the recently enacted Waqf (Amendment) Act, 2025 on Wednesday (April 16), a bench led by the Chief Justice of India questioned some parts of the act and even proposed to stay those provisions. A bench of CJI Sanjeev Khanna and Justices Sanjay Kumar and K V Viswanathan asked the Centre whether Muslims would now be allowed to be part of Hindu religious trusts; can long standing practice of “waqf by user” be nullified all of a sudden after so many years; and how can a property be treated as non-waqf the moment a Collector starts an inquiry whether the land is a government land or waqf.Waqf by user' refers to the practice where a property, such as a mosque, dargah, graveyard, or community kitchen, is treated as waqf not because of a formal written deed, but because it has been consistently and openly used for religious or charitable purposes over a long period.The Waqf (Amendment) Act, 2025, received Presidential assent on April 5 after being passed in both Houses of Parliament amid heated debates. In the Rajya Sabha, 128 members supported the bill, while 95 opposed it. In the Lok Sabha, the Bill was passed with 288 votes in favour and 232 against.A total of 72 petitions have been filed challenging the Act, including those by AIMIM leader Asaduddin Owaisi, All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, DMK, and Congress MPs Imran Pratapgarhi and Mohammad Jawed.CJI Sanjiv Khanna said that the interim order will balance out equities. He further said that the bench will pass an interim order saying whichever properties have been declared by the court to be waqf or held to be waqf will not be de-notified or be treated as non-waqf properties.The court added that it will also say that a Collector can continue with the inquiry, but the proviso which says that a property under inquiry will be treated as non-waqf will not be given effect.The court also said that as far as the constitution of the Waqf Boards and Central Waqf Council are concerned, ex officio members can be appointed, regardless of their faith, but all other members should be Muslims.The court deferred dictation of the interim order, following requests by the Solicitor General of India Tushar Mehta and counsels for other respondents for a hearing before passing the interim order.The bench, at the outset, sought to know from all the lawyers if it should delegate the case to some HC or should it continue to hear the case. Then it asked both the sides to point out in brief what you are really urging and wanting to argue, clarifying that it did not mean to say that there was any bar on SC in hearing and deciding pleas.Senior Advocate Abhishek Singhvi, representing some petitioners, said the Act had nationwide implications and should not be transferred to any High Court. The court eventually went on to hear the case for close to two hours and decided to continue hearing it the next day as well.The court also observed that while the general rule was against granting stay on a legislation, this case had an exceptional feature in the proviso to ‘denotifying waqf by user’ which could have huge consequences.Arguments by the petitionersSenior advocate Kapil Sibal opened the arguments from the petitioners’ side and submitted that certain amendments infringe upon Article 26 of the Constitution by interfering with essential aspects of Islamic faith. He highlighted the following concerns:• Section 3(r) imposes a condition requiring individuals to prove they have practiced Islam for five years to create a Waqf, which he deemed unnecessary for born Muslims.• Section 3A (on Waqf-Al-Aulad) allows the State to interfere in inheritance matters during a person's lifetime, unlike the Hindu Succession Act, which applies after death.• Section 3C denies Waqf status to properties identified as government properties. With these disputes being decided by a government officer, it creates conflict of interest.• Section 3D prohibits Waqf creation over ASI-protected monuments. Sibal questioned its impact, citing Jama Masjid as an example, but CJI clarified that most ancient mosques wouldn’t be affected unless they were designated ‘protected monuments’ after Waqf creation. • Section 3E bars Waqf creation over Scheduled Tribes’ properties, which Sibal argued conflicts with existing tribal property laws.Sibal also flagged provisions allowing non-Muslims on the Central Waqf Council and State Waqf Boards, contrary to Article 26. He criticized mandatory registration and the application of the Limitation Act, which he said could enable adverse possession claims by encroachers.Centre’s argumentsSolicitor General Tushar Mehta, representing the Union government, explained that the amended Waqf Act was enacted after extensive deliberations by the Joint Parliamentary Committee (JPC), which consulted stakeholders across the country.He emphasized that the legislation was passed in both Houses of Parliament after a thorough debate.The bench asked whether the concept of ‘waqf-by-user,’ even when established by court judgments, is now rendered void under the amended law. Mehta elaborated on the Islamic concept of 'Waqf,' describing it as the dedication of property to Allah for charitable purposes,. He clarified that the amendments primarily concern the Waqf Board’s role and do not interfere directly with the Waqf itself.Courts observationsThe court raised concerns about the treatment of waqf properties under dispute with the government, questioning why such properties should not retain their status as waqf until disputes are resolved. The court proposed that such matters be decided by civil courts.The CJI further questioned the feasibility of registration requirements, noting that many masjids were established centuries ago, predating registration systems. Justice Viswanathan questioned the implications of Section 3C, which allows the government to claim land as government property, thereby halting waqf benefits during investigations. CJI deemed it unfair, asking what happens to generated rents during disputes. Mehta assured that aggrieved parties could seek remedies through the Tribunal and writ courts, with orders subject to judicial review. The CJI, however, remained skeptical, stressing the difficulty of registering waqf-by-user properties due to a lack of historical documentation and pointing out that many such properties are genuinely waqf, despite potential misuse. He referenced judgments from the Privy Council as evidence and expressed concern over the implications of denotifying waqf-by-user properties.The court also raised concerns about a particular provision which exempts trust properties from the Act, regardless of court judgments. The bench emphasized that while the legislature can amend laws, it cannot nullify or disregard court rulings. In response, Mehta expressed uncertainty about the inclusion of such wording and suggested ignoring that part. He noted that many Muslims prefer charitable actions through trusts rather than being governed by the Muslim Board.The court also raised concerns about provisions that allow non-Muslims to be nominated to the Central Waqf Council and State Waqf Boards.The CJI asked Mehta whether minorities, including Muslims, could similarly be included in Boards governing Hindu religious endowments.Mehta’s comment comparing the inclusion of non-Muslims in Waqf Boards to judges of all faiths hearing cases irked the bench. The CJI clarified that judges are secular in their adjudication, but religious boards deal with specific faith-based matters.Mehta said that non-Muslims would constitute a minority on the Boards, but Justice Kumar pointed out that the statute does not specify a limit on non-Muslim members, challenging the Solicitor General’s interpretation.Mehta assured the court that he will file an affidavit and that the current board composition would remain unchanged until the end of their term.