Chief Justice of India BR Gavai today emphasized that courts cannot interfere with laws passed by Parliament unless a glaring unconstitutionality is demonstrated.

The observation came during a hearing on multiple petitions challenging the Waqf Amendment Act, which was enacted last month.

A bench comprising CJI Gavai and Justice AG Masih was hearing challenges to the legislation, particularly on three core issues previously flagged by the court: (1) the concept of “Waqf by user,” (2) the nomination of non-Muslims to Waqf Councils and State Waqf Boards, and (3) identification of government land as Waqf property.

The Centre, represented by Solicitor General Tushar Mehta, submitted that it had filed its response on these three specific aspects. “However, the petitioners have now expanded their arguments to include several other issues. My request is that the hearing be confined to the originally identified issues,” Mr Mehta said.

Senior advocates Kapil Sibal and Abhishek Manu Singhvi, representing the petitioners, strongly objected. Mr Singhvi argued that the case could not be heard in a “piecemeal” manner. “The then CJI Sanjiv Khanna had said that the court would examine the case in its entirety and consider interim relief if necessary,” he noted.

Mr Sibal contended that the amended law effectively enables the government to take control of Waqf properties without due process. He challenged the provision that only someone who has practised Islam for at least five years can create a Waqf. “If someone is on their deathbed and wants to create a Waqf, they must prove a five-year history of religious practice. This is unconstitutional,” he argued.

Responding to these concerns, Chief Justice Gavai reiterated, “There is a presumption of constitutionality in any legislation that passes through Parliament. Courts are not to interfere unless a clear, undeniable case is made out. Especially in the current context, we don't need to elaborate further.”

Mr Sibal also raised objections to the provision allowing private individuals or village panchayats to question a Waqf property’s status. “A government official then becomes a judge in his own cause, without any external checks,” he said, adding that such mechanisms could result in arbitrary deprivation of private religious endowments.

Drawing a contrast between the treatment of different religious institutions, Mr Sibal said, “The State cannot fund religious institutions under our Constitution. Temples may receive public donations and chadhava, but mosques and graveyards rely on private property. People often dedicate their land to Waqf in their final days.”

When the Chief Justice noted that grants are sometimes made to dargahs, Mr Sibal clarified that his arguments were limited to mosques.

Later, when the court resumed post-break, Mr Sibal highlighted another concern: the potential impact of ASI protection on Waqf properties. “If a monument is declared protected by the Archaeological Survey of India, it automatically loses its Waqf status. This affects places like the Jama Masjid in Sambhal,” he said, calling the situation “deeply disturbing.”

He also noted that certain provisions in the final law were not included in the draft reviewed by the Joint Parliamentary Committee, and therefore never discussed in Parliament.

The matter continues to be under judicial consideration.