Manas Dasgupta
NEW DELHI, Sept 15: The Supreme Court on Monday temporarily halted several key provisions of the contentious Waqf Amendment Act passed by Parliament in April, this year, including one giving sweeping powers to the district collectors to decide on the arbitration of the Waqf properties and limiting the non-Muslim members of the Waqf boards.
While refusing to put a blanket stay on the entire law, a Bench comprising Chief Justice of India BR Gavai and Justice Augustine George Masih in their interim order also stayed the provision of requiring a potential Waqf donor to be at least five years of “practising Islam.” Declining the stay the act in its entirety, the court noted that presumption was always in favour of the constitutionality of a law passed by the legislature.
Halting the provision that granted the District Collectors sweeping powers to decide if a property can be considered Waqf, the bench said, “the Collectors being a government officials cannot be permitted to adjudicate the rights of personal citizens, and this will violate the separation of powers.” The bench said these provisions would lead to an ‘arbitrary exercise of power’, and paused them till pleas challenging the constitutional validity of amendments to laws governing Waqf, i.e., charitable donations by Muslims, are settled.
The court also refused to stay a requirement for registration of Waqf properties; the judges reasoned this aspect was present in law before it was amended but never enforced. But it capped the number of non-Muslims who can be appointed to the Central Waqf Council and State Waqf Boards to a maximum of three members. The order came in response to a batch of nearly 65 petitions challenging the constitutional validity of the new law.
“It is only in the rarest of rare cases, the court can grant stay of the law challenged. We have found that the case was not made out to stay the entire statute,” the Bench observed. The Court made it clear that its refusal to stay the entire statute and observations made in the judgment would not impair the rights of the parties to further pose a comprehensive challenge against the entire 2025 Amendment Act and all its provisions.
The stayed Section 3 which had required a person intending to create a waqf to prove that he had been practising Islam for at least five years. The Court said until a “mechanism” or “rules” are devised by the Centre to prove that a person has been a Muslim for five years, the amendment would be stayed. “It is held that without a mechanism, such a provision would lead to an arbitrary exercise of power,” Chief Justice Gavai underscored.
The Court also froze the implementation of the proviso in Clause 2 of 3C, which mandated that a waqf property under dispute and subject to an enquiry by a designated officer of the government, would lose its status and character of a waqf asset until the official submitted a report.
The petitioners had submitted Section 3C had allowed free rein to any encroacher to start a dispute about the authenticity of a waqf and freeze its status as a waqf. The Court said permitting a government officer like the district Collector to determine the rights of a waqf or citizens who are stakeholders in the waqf would be alien to the doctrine of separation of powers.
“The Executive cannot be permitted to determine the rights of citizens in proceedings,” Chief Justice Gavai said during the pronouncement. The court emphasised that there would be no change in the status or position of the waqf property under enquiry until the findings of the designated officers reached finality.
The judgment said until the issue of the title of waqf property was determined by a competent tribunal and subject to further proceedings by the High Court concerned, the waqfs would neither be dispossessed of the property nor would there be any change made in the revenue or court records. No third party rights would also be created in the interim of a pending title dispute.
The court held that Muslims would be the majority members of crucial waqf bodies such as the Central Waqf Council and the Waqf Boards across States. The Central Waqf Council, under Section 9, would not have more than four non-Muslim members out of a total 20.
“Equally, in Waqf Boards, under Section 14, the number of non-Muslims would not be more than three. Utmost efforts would be made by States to ensure that the Chief Executive Officers of waqf boards, under Section 23, must belong to the Muslim community,” the court directed.
Petitioners had raised alarm about the “subordination” of Muslim members in waqf administrative bodies by including non-Muslims in them. Senior advocates Kapil Sibal and AM Singhvi had argued that no other religious endowments, Hindu or Sikh, allowed room to members of other faiths to run their temples or gurudwaras.
The Court’s judgment however did not prima facie favour petitioners’ arguments against the mandatory registration of waqfs by the authorities. Chief Justice Gavai noted that registration had been made mandatory since 1995 and continued till 2013, after which it was abandoned. Besides, unregistered waqfs could still go and get themselves registered.
The petitioners had described the mandatory requirement to register waqfs as a “creeping acquisition” of Muslim properties by the government. They had further argued that the 2025 Amendment Act would effectively invalidate unregistered waqf–by-users. Many of the age-old waqfs had no documents or deeds to support their identity.
They had argued that the law placed “arbitrary restrictions on waqf properties and their management, thereby undermining the religious autonomy of the Muslim community.” They had contended the waqf amendment law undermined property rights protected under Article 300A of the Constitution and encroached on a minority community’s right of freedom of religion (Article 25).
The Centre, represented by Solicitor General Tushar Mehta, on the other hand, had defended registration as a necessary counter to “rampant encroachment” on public and private properties. Mr Mehta had submitted that waqfs by user were only given statutory recognition by preceding Waqf Acts. “What was created by a legislative policy could be taken away by legislative action considering the societal situation,” he had noted.
The Union Government had defended the constitutionality of the waqf amendments, noting that practice of charity through creation of waqfs was not an essential part of Islam. The government had countered the petitioners, saying Articles 25 and 26 (minorities’ right to manage their religious affairs) permitted State regulation of secular activities related to religion, including financial management and property administration of religious endowments to ensure transparency.
The CJI said the bench has considered the “prima facie challenge” to each section in the new law and found that “no case was made out to stay entire provisions of the statute.” “However some sections need some protection,” he said.
The bench made clear that its directions were prima facie and interim in nature and they would not prevent the petitioners or the government from advancing full arguments on the constitutional validity of the law at the stage of final hearing.
The Congress welcomed the apex court’s verdict as a win for the constitutional values of justice, equality, and fraternity, and asserted that it would go a long way towards undoing the “mischievous intentions” underlying the original statute.
Congress general secretary in-charge communications Jairam Ramesh said the Supreme Court’s order on the Waqf (Amendment) Act 2025 represents a substantial victory not just for the parties that opposed this arbitrary law in Parliament but all those members of the Joint Parliamentary Committee who submitted detailed dissent notes which were then ignored but now stand vindicated.
“The Order is an important one because it goes a long way towards undoing the mischievous intentions underlying the original statute,” Mr Ramesh said on X. Counsels for the opposition parties had argued that the law would result in the creation of a structure where anyone and everyone could challenge the status of the property before the Collector, and the status of the property would be in limbo while in such litigation, he said.
“The intention behind these sections was always apparent — to keep the voter base inflamed and create an administrative structure to indulge those seeking to foment religious disputes,” he alleged. “We welcome this order as a win for the constitutional values of justice, equality, and fraternity,” Mr Ramesh added.
In August last year a proposal to amend 44 sections of the Waqf Act of 1955 – with the stated aim of better managing waqf properties, which refer to land set aside, under Islamic law, for religious or charitable purposes – was tabled in Parliament, and kick-started a legal and political row, which included violent protests in parts of the country and three deaths in Bengal.
Apart from the ‘five-year’ rule and nominating non-Muslim members to each Waqf board, other proposals included appointing a Union Minister and persons of ‘national repute’ to the boards and allowing a District Collector the final word on issues related to waqf property ownership.
The proposals were sent to a joint committee – and more drama followed, including opposition MPs accusing the committee chair, Jagdambika Pal of the BJP, of ignoring their views. The BJP refuted claims of manipulation; panel member Aparajita Sarangi said Mr Pal “tried to hear everybody out and gave sufficient time for everybody to move amendments.”
The committee eventually greenlit 14 changes, all of which were made by the BJP, and the amendments became law in April this year, after yet more stormy face-offs in both Houses. After the bill was passed several petitioners, including Muslim religious groups, individuals, and political leaders, challenged the constitutional validity of the law and its provisions. They argued the amendments undermined the rights of Muslims – as laid out in the Constitution.
In response, there were petitions filed – some by BJP MPs – in support of the amendments. In April the Supreme Court clubbed some of these and discarded the other, noting the sheer volume of petitions filed made it “impossible to deal with…” The government was given a week to file a reply and told the court would not ‘trespass into the domain of the legislature’, and that the separation of powers had been made clear by the Constitution.
However, as the final arbiter on issues involving the Constitution, the Supreme Court agreed to hear petitioners who insisted that the changed Waqf laws trampled fundamental rights, including the right to equality and the right to pursue religious practices. In early hearings senior advocate Kapil Sibal argued that many of these provisions violate Article 26 of the Constitution, which guarantees the freedom to manage religious affair.
Specifically, the ‘waqf-by-user’ clause attracted spirited legal discussions, with Mr Sibal pointing out it is unreasonable to want documented proof of ownership for historical structures; “The problem is, if a waqf was created 3,000 years ago, they will ask for the deed,” he said.
But the court then pointed to various reports about modern government buildings being claimed as ‘waqf’, including the ground on which the Delhi High Court stands. “We are not saying all waqf by user is wrong, but there is genuine concern…” then-Chief Justice Sanjiv Khanna said.
In its interim orders Monday, the ‘waqf by user’ point was not deleted or halted, but the court granted temporary protection to such properties. The court ruled the government could not alter the status of disputed waqf property immediately, and had to first approach a waqf tribunal. The tribunal’s decision can then be challenged in the High Court.
