Before reserving the interim order, a bench comprising Chief Justice B R Gavai and Justice Augustine George Masih heard senior advocates including Kapil Sibal, Rajeev Dhavan, Abhishek Singhvi and Huzefa Ahmadi for those challenging the amended waqf law and Solicitor General Tushar Mehta, representing the Centre, on three consecutive days. On the last day, the CJI said, “I have already said that there is a presumption of constitutionality.”

On May 20, the CJI noted the same and said, “For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there.” The bench previously identified the three issues, on which a stay was sought by the petitioners, for passing interim orders. Apart from the issue of denotification, petitioners have raised questions over the composition of state waqf boards and the Central Waqf Council, where they contend only Muslims should operate except ex-officio members.

The third issue relates to a provision that says a waqf property will not be treated as a waqf when the collector conducts an inquiry to ascertain if the property is government land. The Centre strongly defended the Act, saying waqf by its very nature was a secular concept and can’t be stayed given the presumption of constitutionality in its favour.

Moreover, though waqf was an Islamic concept, it was not an essential part of Islam, it added. Sibal, leading the petitioners, described the law as a “complete departure from historical legal and constitutional principles” and a means to “capture waqf through a non-judicial process”. “This is a case about the systematic capture of waqf properties. The government cannot dictate what issues can be raised,” he said.

On Thursday, Mehta began his submissions by urging the court not to rush into staying a duly enacted law and said, it is not difficult to raise a proposition, and only because it can be argued does not justify staying a statute passed by a competent legislature. Highlighting the tribal land exclusion clause under the law, he said Scheduled Tribes in scheduled areas were a constitutionally protected class, and the amendment respected that status.

The bench asked whether a religious identity could override cultural protections especially if waqf properties were created on tribal land. Waqf is to Allah. It is irrevocable. If found unconstitutional later, it can be quashed. But creating irreversible waqf in the meantime has far-reaching consequences, Mehta said.

The SG defended a provision which says only a person, who has been practicing Islam for last five years, can create waqf by saying the condition was necessary to prevent fraudulent waqfs and not to deny genuine religious expression. If a Hindu wants to create a charitable institution, there are existing legal routes. Why use waqf? he asked, adding that charity can be done by non-Muslims by creating trusts.

He said the concept of essential religious practices does not shield waqf by user, a concept developed under statute rather than core Islamic tenet. He dealt with the concerns over non-Muslims creating waqf properties and said, “There is a difference between creating a waqf and donating to one. A Hindu can donate to a waqf, but cannot create one.”

Senior advocate Rakesh Dwivedi, appearing for Rajasthan, supported the Centre and said waqf by user had no basis in Islamic law but was rather introduced through principles like adverse possession post-Independence. Advancing rejoinder submissions, Sibal said the Act was “ex facie arbitrary, irreversible, and expropriatory”.

He said Section 3C stripped Muslims of their rights even before any determination was made on whether a property was government land or waqf. “There is no law laid down in the statute as to how such determination will take place,” said Sibal, questioning the procedural fairness of the amendment.

Dhavan said the Centre by the law liquidated the concept of waqf. He assailed the very foundation of the law, saying it violates both the individual and institutional religious freedoms guaranteed under Articles 25 and 26. Responding to the plea that waqf by user right was given by a law and can be taken away by the subsequent one, he said the law cannot act like a lord. The law does not create waqf by user it only recognises it, he added.