2025 Waqf law: SC stalls key provisions but refuses to stay entire law

The Supreme Court on Monday, 15 September, stayed several provisions of the Waqf (Amendment) Act, 2025, including clauses granting collectors the authority to decide the status of waqf properties.

A bench led by Chief Justice of India B.R. Gavai, with justice Augustine George Masih, observed that permitting the executive to determine citizens’ rights would violate the principle of separation of powers.

“Executive officer cannot be permitted to determine the rights of citizens,” CJI Gavai said while issuing the interim order.

"However some sections need some protection,” he said.

Among the provisions paused was the power of collectors to declare a waqf property as government land and alter revenue records. The court also stayed the clause requiring a person to have practised Islam for five years before dedicating property as waqf.

However, the bench refused to stay the entire Act, reiterating that judicial intervention is warranted only in the “rarest of rare cases.”

The directions were described as prima facie and interim, leaving scope for both the petitioners and the government to argue the law’s constitutional validity at the final hearing.

Key provisions stayed

1. Five-year practicing Muslim requirement (Section 3(r))

   • The court stayed the provision requiring a person to be a practicing Muslim for the last five years before dedicating a property as Waqf, until state governments frame rules for verifying such claims.

   • The bench noted that without a proper mechanism, the provision could lead to arbitrary exercise of power.

2. Powers of government officers (Section 3C)

   • The court stayed parts of Section 3C that allowed designated officers to adjudicate Waqf property status:

     • Section 3C(2) – property not deemed Waqf until an officer confirms no encroachment.

     • Section 3C(3) – officer could declare property as government land and alter revenue records.

     • Section 3C(4) – state government could direct Waqf Boards to correct records based on officer findings.

   • The bench ruled that permitting a collector to determine rights violates the separation of powers, as the executive cannot decide citizens’ rights.

   • Until a property’s title is adjudicated under Section 83 by the Waqf Tribunal (and subject to High Court appeal), neither Waqf possession nor records can be disturbed, though no third-party rights may be created in the interim.

3. Non-Muslim participation in Waqf boards

   • While the court did not strike down the provisions, it limited non-Muslim representation:

     • Central Waqf Council: maximum 4 non-Muslims out of 20 members.

     • State Waqf Boards: maximum 3 non-Muslims out of 11 members.

   • The bench advised that, where possible, CEOs and ex-officio secretaries of Waqf Boards should be selected from the Muslim community.

4. Registration of Waqfs

   • The court refused to interfere with the requirement for mandatory registration of Waqfs, noting that it has existed under prior laws of 1995 and 2013.

Background

• The Waqf (Amendment) Act, 2025, defines Waqf as an endowment by a Muslim for religious or charitable purposes, such as building mosques, schools, hospitals, or other public institutions.

• Waqf properties are inalienable: they cannot be sold, gifted, inherited, or encumbered.

• The Act received Presidential assent from Droupadi Murmu on 5 April 2025, and was notified on 8 April. The Lok Sabha and Rajya Sabha passed the bill on 3 and 4 April, respectively.

The Supreme Court had reserved orders on 22 May after hearing pleas challenging three key issues:

1. Powers to denotify Waqf properties (declared by courts, by user, or by deed).

2. Composition of State Waqf Boards and Central Waqf Council, with petitioners seeking Muslim-only control except ex-officio members.

3. Provisions stating a Waqf property will not be treated as Waqf during a collector’s inquiry to determine if it is government land.

Earlier, the Union Ministry of Minority Affairs filed a 1,332-page affidavit defending the Act, opposing a “blanket stay” and asserting the presumption of constitutionality for laws passed by Parliament.

The interim order signals the Supreme Court’s careful approach in balancing constitutional rights, religious practices, and administrative powers, while allowing full arguments on the law’s validity to proceed at the final hearing.

With PTI inputs