Double Standards: Centre Takes Contrasting Stances Before Supreme Court In Cases Challenging Hindu Temple Laws And Waqf Amendment Act

During the hearing on May 22 in the petitions challenging the Waqf (Amendment) Act, 2025, Solicitor General Tushar Mehta, appearing for the Centre, clarified that he was not supporting the argument that the cases should first be heard by the High Courts and not the Supreme Court.

The argument was made by some Hindu petitioners, who had challenged the 1995 Waqf Act as well as the present 2025 Amendment on the ground that some provisions are violative of the rights of the majority community.

The Solicitor General submitted, "There are some petitions… I am making my position clear, I do not represent them, where they have challenged the main Act, '95 Act."

The Bench of Chief Justice of India B.R. Gavai and Justice A.G. Masih responded, "Vishnu Shankar Jain- in 2025, they want us to see the challenge to 1995 Act, we will not listen, we will not entertain petitions."

The Solicitor General reiterated, "I am not supporting them. I am neither opposing them… Their argument was that since they were sent to High Court, these people also should be sent to High Court. I am not raising that plea. It is a question of law. It is a constitutional question… I am not supporting this – please hear in Article 32."

In contrast, last month, when the Supreme Court was considering a batch of cases filed as far back as in 2012 challenging the constitutionality of various provisions of the Hindu Religious Endowments laws of Tamil Nadu, Andhra Pradesh, Telangana, and Puducherry, the Central Government supported the States' position that the petitions should first be heard by the respective High Courts.

Based on the stand of the Centre, the cases, including one filed in 2012 by Swami Dayananda Saraswati and others, were disposed of by a bench comprising Justice B.V. Nagarathna and Justice Satish Chandra Sharma, asking the Petitioners to approach the High Courts.

During that hearing on April 1, 2025, Justice Nagarathna asked Additional Solicitor General K.M. Natraj, appearing for the central government, “What is the stand of the Union of India?”.

“It is a State subject, the State has to regulate. I don't think the Union can do much in the matter,” the ASG replied. Guru Krishnakumar then submitted that the Union of India had earlier agreed to clarify its stand on merits in writing. ASG Natraj added, “There are four legislations under challenge. These are all State-specific issues. In a particular State, the scheme of the Act will be different. To what extent regulation is required and how it is applied to a particular Temple in a particular situation will have to be first examined by the respective High Courts. Without that..., under Article 32…”

After the Court had passed its order, Solicitor General Tushar Mehta appeared and submitted, “Principally, Temples can never be under the control of the Government. Principally, it can never happen. If religion has no business in governance, governance has no business in religion. As simple as that.” He later added, “Temples are not departments of the Government.”

“Why have you not challenged it in the state High Courts?” Justice Nagarathna then asked the petitioners. Petitioner's counsel replied that they were relying upon a prior Supreme Court judgment and that the decision would have ramifications across States. “Each Act has to be considered independently. There can't be common arguments because the statutes of each State are different. Why don't you go to the High Courts? We will have the benefit of the wisdom of the High Court's Judgments. You can come here, you can have another round here,” Justice Nagarathna said.

It was the argument of the Hindu petitioners, including the ones represented by Advocate Vishnu Shankar Jain, that even the cases challenging the 2025 Waqf Amendment Act should be considered by some High Court first. The cases challenging the Hindu Religious Endowment laws were sent to the High Court despite their long pendency before the Supreme Court.

There are past instances when the Supreme Court has refused to entertain petitions challenging central laws on the ground that it wants to have the benefit of the view of a High Court on the subject.

Incidentally, an argument was raised on behalf of a State Waqf Board supporting the Central Government on the 2025 Waqf Amendment, which would have been a reason to argue that the cases should be heard directly by the Supreme Court, instead of a High Court. However, the same was rejected by the Centre, even though it came from a party supporting its stand.

Senior Advocate Gopal Sankaranarayanan, appearing for a state Waqf Board, made a submission on the scope of judicial review while claiming right under Article 25 and pointed out that the issue had been referred to a nine-judge bench, referring to the Sabarimala case.

“Under Article 25(2)(a) State can make law for the purpose of anything that is economic, business, political, etc., which is what this is. If their claim is that it (creating Waqf) is a religious practice, the very scope of judicial review when religious practice is being asserted... because otherwise, they will not have Article 25 right, in which case they can't maintain a petition under Article 32. If they are maintaining the Article 25 claim, that very issue has been referred to nine judges", he submitted.

“For an interim purpose, when this Court itself has taken the view that these questions have to be referred, Shriur Mutt has been doubted, then that question will have to be decided first before interim orders are granted for a statute,” he further submitted.

However, SG Tushar Mehta immediately clarified the Centre’s position, stating, “I am not supporting this argument.”