Waqf Act and Judging Justice: Selectivity or Silence?

Part IX: Waqf (Amendment) Act, 2025

Table of Contents

Critical Moments of Waqf Act and Judging Justice

In the aftermath of nationwide violence following the Waqf (Amendment) Act, 2025, a new conversation has emerged—one not just about religious law or public protest, but about Waqf Act and judging justice itself. As mobs set vehicles ablaze and families fled their homes, many turned to the courts, expecting clarity, impartiality, and protection. Instead, what followed was a pattern of hesitation, delay, and double standards.

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This blog—eighth in our unfolding series—examines the judicial fallout of the Waqf unrest. From lower court silence to the Supreme Court’s selective urgency, we explore whether the legal system upheld its role as a neutral arbiter—or reinforced the very imbalances it was expected to resolve.

From Legislative Reform to Judicial Reckoning

The Waqf (Amendment) Act, 2025, was positioned as a reformist measure—targeting undocumented property claims and ensuring accountability in the management of nearly 8 lakh waqf assets. Its key provision was the removal of the controversial waqf by user doctrine, which had enabled land acquisitions without formal deed or process. Yet what should have been a regulatory correction turned into a nationwide conflagration.

Protests flared in West Bengal, Maharashtra, and Tripura—many quickly escalating into violence, displacement, and targeted attacks. As public order collapsed, eyes turned to the judiciary. Would it rise above political noise to uphold law and equity? The events that followed would test the Indian legal system—not just in rulings, but in perception. And in this moment, Waqf Act and judging became a barometer of institutional courage and consistency.

Does Supreme Court have Dual Standards?

In the aftermath of the Waqf Act unrest, many expected the Supreme Court of India to rise as the impartial guardian of justice. Instead, its conduct revealed troubling inconsistencies. From contradictory case timelines to selective activism and constitutional ambiguity, the highest court’s response has drawn sharp criticism—not just from legal scholars but from within the bar itself.

1. Contradictory Timelines: Justice on Fast Track or Foot Dragging?

One of the most glaring disparities lies in how swiftly the 2025 Waqf Amendment Act petitions—many filed by prominent Muslim organizations—were listed and heard by the Supreme Court. Within 11 days of filing, a constitutional bench took up the matter and began issuing interim directions. In stark contrast, over 140 petitions challenging the original Waqf Act of 1995, many by Hindu petitioners and temple boards, were either dismissed or redirected to High Courts.

A prime example is the case filed by Ashwini Kumar Upadhyay in 2022, which questioned the constitutional validity of the Waqf Act. The Supreme Court refused to entertain the plea, citing the absence of “specific personal harm,” and advised the petitioner to approach the High Court. Similarly, in a temple Waqf dispute pending since 2013, the apex court refused to intervene and redirected the case back to lower courts—after over a decade of inaction.

This selective acceleration of hearings exposes what legal commentator Vishnu Shankar Jain calls a “judicial double standard”—one that appears to fast-track certain grievances while indefinitely shelving others of equal constitutional weight.

2. ‘Waqf by User’: Between Doctrine and Discretion

The concept of ‘Waqf by user’—where land could be claimed as Waqf solely based on long-term religious use without formal documentation—has become a litmus test for judicial neutrality. While Advocate Vishnu Shankar Jain decries the doctrine as “draconian and unconstitutional,” arguing that it allowed seizure of private or temple land without legal procedure, the Supreme Court’s stance remains muddled.

In the April 2025 hearings, Chief Justice Sanjiv Khanna expressed concern about the implications of removing ‘Waqf by user’, stating:

“You cannot rewrite the past.”
This statement, made in defense of protecting existing undocumented Waqf properties, directly contradicted the Court’s demand for rigorous documentation in temple-related disputes, such as the Yamuna Shiva temple case.

Advocate Vishnu Shankar Jain:

“In Gyanvapi and Eidgah Madan, ‘usage’ was enough. But in Shiva temple claims, the Supreme Court asked, ‘Where is the documentation?’”
The inconsistency suggests not just interpretive discretion—but a worrying ideological tilt.

3. Sidebar: Cases That Reveal the Divide

⚖️ Key Cases & Judicial Contradictions

Ashwini Kumar Upadhyay (2022):
SC dismissed constitutional challenge to the Waqf Act, 1995. Redirected to High Court. No opinion on merits.
Vishnu Jain’s Waqf Claims Over Temples (2013–2024):
11 years in SC. Dismissed without hearing. Advised to start afresh in HC.
Waqf Amendment Act Petitions (2025):
73 petitions by AIMPLB and others. Listed within 11 days. Interim protection granted to “Waqf by user” properties.
Gyanvapi Case (2022):
SC upheld “usage” as a valid argument for preserving Islamic structures.
Shiva Temple, Yamuna Riverbed (2024):
SC demanded land ownership documentation. Dismissed case due to “insufficient historical evidence.”

A Missing Suo Motu Moment?

The Supreme Court’s inaction on the communal violence following the Waqf Amendment mirrors its legal hesitation. In the past, the Court has taken suo motu cognizance of riots, custodial deaths, and even administrative missteps. But here, despite widespread violence, mass displacement, and digital evidence of mobs and arson, no such initiative was taken.

Instead, the Calcutta High Court had to step in, ordering deployment of central forces. Even then, the forces were granted only limited observer roles, without authority to replace compromised police leadership or intervene in real-time law enforcement failures.

This silence raises a larger question: When does the judiciary choose to act unprompted—and when does it remain passive in the face of crisis?

This aspect is covered in our earlier blog: Judicial Response to Waqf Act Unrest

Waqf Act and Judging Justice in a Fractured Republic

The Waqf Act unrest has brought us to a national reckoning—not just about religious endowments or legislative reform, but about the very nature of judicial responsibility. Waqf Act and judging are now linked in public discourse—not because of what the law said, but because of how it was selectively interpreted, delayed, or dismissed.

When 11-year-old Hindu petitions are shelved while Waqf challenges are fast-tracked within days, the message is loud: some grievances matter more than others. When the courts demand records from temples but uphold undocumented religious claims elsewhere, neutrality is not preserved—it is publicly undermined.

The silence of the judiciary in moments of widespread communal violence—where suo motu action was not taken, and High Courts had to compel basic accountability—adds to a growing sense of abandonment among citizens.

This blog is not just a review of rulings; it is a call to restore faith in a system slipping toward selective morality. Because if Waqf Act and judging justice now evoke doubt rather than trust, the Republic must ask: who defends the defender?

Let the record stand. Let the silence end.
Let justice be blind—not blinkered.

Will You Wait or Will You Speak?

This blog isn’t just a report—it is a reminder that silence, even from the judiciary, has a cost.

If courts won’t act unprompted, if cases rot for over a decade, if doctrines change based on identity—then where should citizens turn?

Join the call for judicial accountability.

Share this blog, discuss the cases, question the silence.
Use your voice—because if the law doesn’t act equally, it risks becoming a tool of politics, not protection.

Next up: Blog: The Larger Game – Is This Just About Waqf?
We’ll return to the socio-political terrain, unpacking the broader strategy behind the unrest and why it fits a recurring pattern of cultural siege and targeted disruption.

For you, the reader: want to remain silent or want to speak out?

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Glossary of Terms

Waqf Act (Amendment), 2025: A legislative reform passed by the Indian Parliament aimed at digitizing waqf records, eliminating undocumented claims, and abolishing the “waqf by user” clause that had enabled land acquisitions without formal documentation.
Waqf by User: A controversial legal concept allowing land to be declared waqf based solely on long-standing religious use, without formal deeds. Criticized for enabling encroachments and land disputes, especially involving Hindu temples.
Suo Motu: A Latin term meaning “on its own motion.” In Indian law, it refers to the judiciary taking action without a formal petition, usually in public interest or cases of urgent constitutional concern.
Judicial Commission of Inquiry: A temporary panel constituted by the government or courts to investigate major public disturbances or systemic failures. No such commission was set up in the wake of the 2025 Waqf-related violence.
Bhangar (South 24 Parganas): A region in West Bengal that witnessed violent protests and police attacks during the Waqf Act unrest. Drone footage of arson and assault went viral, yet arrests were delayed until court intervention.
Priyanka Tibrewal: A social activist and advocate affiliated with the Bharatiya Janata Party (BJP) who filed a public interest litigation (PIL) in the Calcutta High Court seeking justice for victims of Waqf-related violence in West Bengal.
Tripura’s Unakoti District: A district in northeastern India where protests against the Waqf Act reportedly escalated into police clashes in April 2025. The High Court did not admit related PILs, citing procedural backlog.
PIL (Public Interest Litigation): A legal mechanism in Indian jurisprudence allowing individuals or organizations to seek judicial intervention in matters affecting the public at large, even if not personally aggrieved.
Gyanvapi Mosque Case: A high-profile legal dispute involving claims of a Hindu temple existing beneath the Gyanvapi Mosque in Varanasi. The case is often cited for the judiciary’s acceptance of religious “usage” as legal evidence.
Veeraswami Judgment (1991): A Supreme Court ruling that bars investigative agencies from filing FIRs against sitting High Court or Supreme Court judges without prior permission from the Chief Justice of India.
Jahangirpuri Demolition Case (2022): A case where the Supreme Court of India stayed municipal demolition drives in Delhi’s Jahangirpuri area post-communal violence, citing concerns about procedural fairness and executive overreach.
Tehseen Poonawalla Case (2018): A landmark Supreme Court case that led to guidelines against mob lynching and hate crimes, urging the government to act proactively against vigilante violence.
Article 356: A provision in the Indian Constitution allowing the President to impose President’s Rule in a state if its constitutional machinery fails. Often controversial due to its past misuse for political ends.
Article 21 of the Indian Constitution: Guarantees the fundamental right to life and personal liberty. It is often invoked in cases where the state fails to protect citizens during riots or communal unrest.
Calcutta High Court: One of the oldest High Courts in India, which intervened after a PIL was filed seeking action against the West Bengal government for inaction during the Waqf Act unrest.
Bharatiya Janata Party (BJP): India’s largest political party, often accused by opponents of politicizing communal issues. In this case, the filing of a PIL by a BJP affiliate was used by TMC to deflect blame.
All India Muslim Personal Law Board (AIMPLB): A prominent Islamic organization in India that filed petitions challenging the 2025 Waqf Amendment Act, arguing it violated religious autonomy.