SC Stalls Key Provisions in Waqf Amendment Act

New Delhi:In an interim order, the Supreme Court on Monday put on hold a few key provisions of the Waqf (Amendment) Act 2025, including a clause that only those practising Islam for the last five years could create a Waqf, but refused to stay the law in its entirety, saying that there is a presumption of constitutionality in the statute.

In its 128-page interim order, a bench of Chief Justice B.R. Gavai and Justice Augustine George Masih said: “Presumption is always in favour of constitutionality of a statute and intervention (can be done) only in the rarest of rare cases. We do not find that any case is made to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected.”

However, in order to “protect the interest of parties” and “balancing the equities”, the order stayed some provisions, including the powers accorded to a collector to adjudicate the status of Waqf properties and ruled on the issue of non-Muslim participation in the Waqf Boards.

The apex court directed the Central Waqf Council not to have more than four non-Muslim members in the total composition of 20, besides asking state waqf boards to have not more than three such members in the total of 11.

“The following part of clause (r) of Section 3 of the Amended Waqf Act ‘any person showing or demonstrating that he is professing Islam for at least five years’ shall stand stayed until the rules are framed by the state government for providing a mechanism for determining the question as to whether a person has been practicing Islam for at least five years or not,” it said.

The top court also stayed a provision which provided that a property should not be treated as “waqf property till the designated officer submits his report”.

Another provision stating that in case the designated officer determines the property to be a government property, he should make necessary corrections in revenue records and submit a report to the state government, was also put on hold.

“Unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the tribunal and subject to further orders by the high court, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the board shall be affected,” the order said.

The bench held that till the final determination about the title of a disputed property by the tribunal and subject to further orders of the high court in an appeal, no third-party rights would be created.

“We are, therefore, of the considered view that the provision which permits the necessary corrections to be made in the revenue records after conclusion of the inquiry and the provision enabling the state government to direct the board to make appropriate corrections in the revenue records on receipt of the report are prima facie arbitrary and liable to be stayed,” it said.

The top court continued: “However, to balance the equities and to protect valuable government properties, it is also imperative that pending such a determination by the tribunal, the Mutawallis of such of the waqfs do not create any third-party rights in respect of such properties for which the proceedings in accordance with Section 3C of the Amended Waqf Act are initiated, until the final adjudication by the tribunal is made.”

The top court, however, did not stay Section 23 (appointment of chief executive officer and his term of office and other conditions of service) of the amended law, but directed the authorities “as far as possible” that an effort should be made to appoint the chief executive officer of the board, who is the ex-officio secretary, from the Muslim community.

It clarified its directions were prima facie and interim in nature, and would not prevent the petitioners or the government from advancing full arguments on the constitutional validity of the law during the final hearing.

According to the Act, Waqf refers to an endowment made by a Muslim for charitable or religious purposes, such as building mosques, schools, hospitals, or other public institutions.

“Another defining feature of a Waqf is that it is inalienable -- which means it cannot be sold, gifted, inherited or encumbered,” it said.

Before passing the interim order, the apex court delved on the issue of the law’s validity and referred to precedents, and said: “Courts should be very slow in granting interim relief by way of staying the provisions of an enactment. Interim relief of such a nature can be granted in rare and exceptional cases…”

The verdict underscored the courts’ acceptance of the legal position of presumption always being in favour of constitutionality of an enactment and the burden being on the person who “attacks it” to show a clear transgression of the constitutional principles.

While it did not find fault with the provision requiring a person practising Islam for five years to create a waqf, saying it cannot be called arbitrary, the bench held: “Since no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practising Islam for at least five years or not, such a provision cannot be given effect to immediately,” it said.

On registration of waqf, it said if mutawallis (caretaker of waqf) have chosen not to get it registered for 30 long years, then they couldn’t be heard to say the provision which now required the application to be accompanied by a copy of the waqf deed was arbitrary.

The apex court said it is pertinent to note that the Ancient Monuments Preservation Act 1904 and the Ancient Monuments and Archaeological Sites and Remains Act 1958 (collectively referred to as “Ancient Monuments Acts”) have been enacted for the avowed purpose of protection of ancient monuments. Such monuments are a vital part of the cultural heritage of our country and therefore they need to be protected. “The argument advanced before us on behalf of the petitioners was that on account of Section 3D of the Amended Waqf Act, the persons practicing Islamic religion would be deprived of performing their religious practices. We, however, are of the considered view that the said argument does not hold water,” it added.