How Supreme Court’s comparison of Waqf Board with Hindu trust is flawed

New Delhi: The Supreme Court, while considering an interim order on three aspects of petitions challenging the Waqf Amendment Act 2025, on Wednesday questioned the Centre about the inclusion of Muslims in Hindu religious trusts.

On Thursday, the top court set May 5 as the next date for hearing pleas against validity of the Waqf (Amendment) Act, 2025.

While questioning about the inclusion of Muslims in Hindu religious trusts, the bench, comprising Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K.V. Viswanathan, appeared to be comparing apples with oranges.

During the high-stakes hearing, Chief Justice Khanna emphasised the court’s secular stance, stating that justices remain impartial while adjudicating. However, the bench’s comparison of Hindu religious trusts with Waqf Boards drew scrutiny, as the two entities differ significantly in structure and functioning.

The question of Muslims serving on Hindu religious trusts is one of many arguments offered by the opposition in Parliament to defend the controversies surrounding the Waqf Act, 1995.

The bench, however, appeared to overlook a critical distinction: Hindu religious trusts are fundamentally different from Waqf Boards.

Hindu religious trusts primarily manage specific religious sites and are not typically associated with claiming lands belonging to other communities. In contrast, Waqf Boards have faced allegations of encroaching on properties owned by non-Muslims and of mismanagement by influential individuals for personal gain.

The bench did not address whether restricting Waqf Boards’ jurisdiction to Muslim-owned properties could eliminate the need for diverse representation, as proposed in the amended Act.

Ironically, the Supreme Court did not reference Hindu practices when questioning how "waqf by user" could be disallowed, as many waqfs may lack the requisite documents for registration.

"The properties declared as waqfs by courts should not be de-notified, whether they are waqf-by-user or waqf by deed, while the court is hearing the challenge to the Waqf Amendment Act 2025," the CJI proposed.

"Waqf by user" refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even without a formal written declaration of waqf by the owner.

The Supreme Court notably overlooked the absence of a comparable "temple land by user" concept in Hinduism.

This selective focus on religious practices by the Supreme Court appears to contradict the secular credentials claimed by the CJI during the hearing.

The court’s question echoed similar to those comparing public religious celebrations to regular prayers. 

For instance, some argue that if Hindus celebrate festivals like Ganesh Utsav or Ram Navami in public spaces, Muslims should be permitted to offer Namaz on roads. However, this comparison overlooks distinctions between religious celebrations and routine religious practices.

Other communities, such as Christians and Sikhs, do not typically conduct regular prayers in public thoroughfares, though events like Muharram processions and Shab-e-Barat rallies face no opposition whatsoever.