Supreme Court’s Waqf Act order a partial balm, not a final remedy

The Supreme Court’s interim order of 15 September 2025 on the Waqf (Amendment) Act stands as a revealing case study of the famed judicial dictum ‘Justice must not only be done but must also be seen to be done’ established by Lord Hewart in R. v Sussex Justices.

This legal canon demands a display of clear integrity, with a judicial demeanour that inspires public confidence in transparency and procedural fairness. The recent order, while grounded in legal reasoning, leaves divided the perception of whether justice was delivered — and that divide runs along sharp communal and political lines.

What the interim order does — and does not

By refusing to stay the entire amended law but pausing select provisions, the Supreme Court splits the difference between minority anxieties and executive intent. The Court has stayed:

• the requirement that a waqf can only be created by someone who has practiced Islam for five years, citing the arbitrariness and lack of a verification mechanism;

• the provision allowing a district collector to unilaterally derecognise waqf land, reiterating the importance of separation of powers and judicial oversight;

• the larger proportion of non-Muslims in the central and state waqf boards, capping the numbers but not removing the requirement entirely.

In addition, the order expresses a preference that, as far as possible, the chief executive officer of a waqf board should be Muslim.

However, the Court left untouched several other divisive amendments in the Act — like the abolition of the ‘waqf by user’ doctrine and the requirement that government-recorded land cannot be categorised as waqf, even if an institution has stood on it for centuries.

Legal scrutiny: a Constitutional compass for half-measures

At the heart of the challenge lies Article 26 of the Indian Constitution — guaranteeing every religious denomination the right to manage its own religious affairs. The amendments, critics argue, violate this provision by curbing Muslims’ exclusive control over waqf assets while extending no such interference to Hindu religious trusts or Sikh gurdwara boards (which retain community control). The Court — in capping but not eliminating non-Muslim representation in governing bodies — only partially acknowledges these concerns around autonomy and parity.

By allowing the government to frame rules for verifying religious practices in the future, the stay on the five-year clause too becomes vulnerable — it signals uncertainty rather than a principled rejection.

The Court’s refusal to restore ‘waqf by user’ or extend constitutional shelter to certain waqfs that lack historical documentation but have served the community for generations also leaves many religious sites in a legal limbo.

The ‘relief’ for petitioners: some gains, many gaps

For the Muslim organisations and individual petitioners who spearheaded the legal battle, the order has been bittersweet:

• It blocks the most intrusive attempts to regulate waqf creation and government expropriation, especially in the short term.

• The uncertainty over properties that have always relied on ‘waqf by user’ as well as the new constraints around registration remain concerning, since historical records are often incomplete, relying on colonial-era land surveys.

• The government’s broader power to legislate and reframe minority institutions — in the name of transparency and efficiency, while leaving majoritarian boards untouched — remains unaddressed, reinforcing anxieties about selective ‘secularism’.

The limited protection offered to waqf properties pending tribunal adjudication prevents immediate dispossession, but does not guarantee victory in the longer constitutional struggle.

A Constitution bench? The road ahead

Should either side challenge the final order on broader constitutional grounds — including violations of religious freedom, minority rights, (in)equality before law or the federal structure — a larger Constitution Bench is likely to be constituted. The current bench’s prima facie observations, stated as being “not binding for the final hearing”, leave open the door to a more exhaustive review of legislative intent, minority rights and principles of Indian secularism.

Such a bench would have to answer several unresolved questions:

• Can Parliament redesign minority religious endowments without comparable frameworks for other communities?

• Does branding waqf as ‘secular’ justify bureaucratic oversight?

• Can waqf be seen as ‘secular’ at all?

• To what extent should the judiciary defer to ‘presumption of constitutionality’ when claims around minority rights raise issues of specific, demonstrable harm?

The Court’s affirmation that statutes must be presumed constitutional and its restraint in invalidating Parliament’s decision are traditional judicial values in India’s doctrine of separation of powers of the executive and the judiciary. Yet this approach may not reassure minority communities who view the reforms as targeted interference.

The decision to stay only some provisions, rather than issue a blanket stay or uphold the Act in toto, betrays the Court’s awareness of the political stakes and social consequences. While the intent to ‘see justice done’ is visible in the measured balancing of claims, public confidence — especially among the petitioners — may still waver, given the patchwork relief and lack of judicial assertion on religious autonomy.

A litmus test for ‘secularism’

That non-Hindu or non-Sikh members cannot serve on comparable boards in other religious traditions highlights a glaring asymmetry. By refusing to equalise this condition for waqf management, the order accentuates rather than bridges the divide between majoritarian and minority religious institution governance in India.

The Supreme Court’s willingness to let Parliament experiment with administrative inclusion, provided representation for Muslims remains, echoes a pragmatic — and perhaps overly restrained — judicial philosophy.

Ultimately, the interim order shines a stark light on the meaning of ‘secularism’ in modern India. If ‘secularism’ means regulating religious institutions only to ensure transparency and efficiency, it must be applied uniformly — not selectively. If it means erasing all religious control from minority institutions but exempting majoritarian ones, then the Constitutional promise of equality is thereby diminished.

For the Waqf Amendment saga, the Supreme Court’s interim order is a transitional moment: part legal remedy, part political statement — and part test of Indian democracy’s inclusiveness.

In conclusion:

While the Supreme Court has paused — but not eliminated — the most controversial aspects of the Waqf (Amendment) Act, crucial questions about religious autonomy, equality and the visible delivery of justice remain suspended in the balance.

The order provides some immediate relief to petitioners, but its deferential tone and unresolved contradictions mean that the final word on India’s management of minority religious endowments is yet to be written — and may well require the wisdom and authority of a Constitution Bench.

Views are personal

Hasnain Naqvi is a former member of the history faculty at St Xavier’s College, Mumbai. More of his writing may be read here