The Supreme Court on Monday struck a balance by staying crucial portions of the Waqf (Amendment) Act of 2025 which it found “prima facie arbitrary” while refusing to freeze the law in its entirety.
A Bench of Chief Justice of India B.R. Gavai and Justice A.G. Masih reasoned that a parliamentary legislation was naturally presumed to be constitutional as the lawmakers would only have the public’s best interests in mind, so much so that even discrimination weaved into the statute would be based on adequate grounds.
However, this reasoning did not stop the court from staying key provisions of the 2025 Act, including the one which required a person intending to create a waqf to prove he had been practising Islam for five years.
The court said there was nothing wrong in requring a person to prove that his faith was five-years-old at least, considering that waqf endowments were misused as a “clever device to tie up property in order to defeat creditors and generally to evade the law under the cloak of a plausible dedication to the Almighty”.
However, the Bench found it prima facie arbitrary that the 2025 law failed to provide a basic mechanism or procedure to ascertain whether the person had indeed been practising Islam for at least five years. Chief Justice Gavai, who authored the judgment, directed the provision to be shelved until the government came up with a suitable mechanism to check on the duration of a man’s faith.
“Totally unconstitutional”
Similarly, the court found “totally unconstitutional” a proviso in Section 3C, which mandated that a waqf would lose its character the moment someone raised a doubt that it was government property.
Chief Justice Gavai said though any government property was public asset, and a designated officer had every reason to conduct an inquiry, a waqf property cannot suddenly cease to be one even before the designated officer completed the probe and submitted the report.
The court also stayed parts of Section 3C which allowed the designated officer and State government to unilaterally alter revenue and Waqf Board records, respectively, changing the status of a waqf property into a government property.
Chief Justice Gavai held that determination of the title (ownership) of a property came within the ambit of the judiciary, and the Executive would be breaching the fundamental principle of separation of powers by one-sidedly depriving citizens possession of a waqf property, leaving them high and dry and knocking on the doors of the Waqf Tribunal.
“It is directed that unless the issue with regard to title of the waqf property in terms of Section 3C of the Waqf (Amendment) Act, 2025 is not finally decided in proceedings under Section 83 before the Waqf Tribunal, and subject to further orders by the State High Court, neither the waqfs will be dispossessed of the property nor the entry in the revenue records and the records of the Waqf Board shall be affected,” the court ordered.
However, to balance the equities and to protect valuable government properties, the court said it was imperative that Mutawallis (managers) of these disputed waqfs did not create any third-party rights until the final decision of the competent tribunal on the status of property.
The Bench further directed that Central Waqf Council would not have more than four non-Muslims out of a total 22. State Waqf Boards would limit the number of its non-Muslim members to three out of a total 11. The apex court ordered that the Chief Executive Officers of State Waqf Boards must be picked from the Muslim community “as far as possible” . Petitioners had raised alarm about the “subordination” of Muslim members in waqf administrative bodies by including non-Muslims in them.
The court’s judgment however did not prima facie favour the petitioners’ arguments against the mandatory registration of waqfs. The 2025 Act had omitted ‘waqf by users’, which include age-old dargahs, mosques, graveyards, etc, with no formal declaration or deeds to support their identity.
“Right from 1923, in all the waqf enactments we have referred to, there was a requirement of registration of waqfs. We are, therefore, of the view that if Mutawallis for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered,” Chief Justice Gavai observed.
The court noted that the Waqf Act, 1995 had allowed registration without any requirement to provide a formal deed. An application for recognition as a waqf property could have been made by giving full particulars “as far as they are known to the applicant with regard to the origin, nature and objects of the waqf”.
“If for 30 long years, the Mutawallis had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary,” the court reasoned.
Besides, unregistered waqfs could still go and get themselves registered.
The judgment prima facie refused to accept an argument by the petitioners that a waqf property would lose its status if it was notified as a “protected monument”.
The petitioners had argued that such a provision in the 2025 Act deprived Muslims their right to perform their religious practices. The court termed the argument a “fallacy”. It referred to Section 5(6) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 , which permitted citizens to continue with their customary religious practices even if such an area was a protected monument.
The apex court also addressed the petitioners’ contention that the 2025 Act restricted tribal community members professing Islam from donating land as waqfs. In response, it referred to observations made by the Joint Parliamentary Committee that declaration of waqfs in tribal areas was “creating a serious threat to the existence of these cultural minorities”.
Published on September 15, 2025
