Senior Advocate Kapil Sibal, appearing before the Supreme Court, argued that the creation of a Waqf is inherently a religious act—specifically, a Muslim’s dedication of property to God—and therefore not a secular process.

He raised objections to recent amendments to the Waqf Act that mandate the inclusion of non-Muslim members in Waqf bodies.

Challenging the Waqf Amendment Act, which became law earlier this year, Sibal contended that the new composition of the Central Waqf Council allows Muslims to become a minority within the body. The 22-member Council includes the Union Minister for Minority Affairs as an ex officio member. While ten members must be Muslims, the rest can include jurists, persons of national eminence, and government officials. According to Sibal, this dilutes Muslim control over Waqf properties, contrasting it with Hindu and Sikh religious institutions where, he said, the management remains within the respective communities.

In response, Chief Justice BR Gavai remarked, “What about Bodh Gaya? All are Hindus.” Sibal replied, “I knew you would ask this,” and clarified that places of worship may be shared by Hindus and Buddhists, but the Waqf system is specifically Islamic. “These are mosques. This is not secular. The creation of Waqf is itself not secular. It is a Muslim property dedicated to God,” he reiterated.

Joining the argument, Senior Advocate Abhishek Manu Singhvi criticized the new requirements under the amended law, claiming they create bureaucratic hurdles and intimidate Waqf applicants. “This is just to infuse terror... Endowments exist in every religion. But which other religious endowment requires proof of practising faith for five years?” he asked. Singhvi warned that under the new framework, even a minor dispute could strip a property of its Waqf status.

Senior Advocate Rajeev Dhavan argued that this is the first instance of a religious Act redefining religion itself. He pointed to a Sikh client who wished to contribute to a Waqf and emphasized the broader constitutional implications. “This question goes to the root of secularism,” he said.

Senior Advocate Huzefa Ahmadi raised concerns over the practical implications of proving one's religious adherence. “Can someone ask if I pray five times a day or whether I drink? Is that how religious identity will be assessed?” he asked.

The Supreme Court is set to continue hearings in the matter tomorrow. Earlier in the day, Chief Justice Gavai underscored the presumption of constitutionality in legislation passed by Parliament, stating that courts would only intervene in cases of clear constitutional violations.

The Waqf Amendment Act has faced criticism and sparked protests from several Muslim organizations, who view it as an encroachment on minority rights and Waqf property. The government, however, has maintained that the changes are intended to make the functioning of Waqf Boards more inclusive, transparent, and efficient.