Supreme Court Declines Blanket Stay on Waqf Amendment Act, but Suspends Key Provisions on Government Property and Creation of Waqfs

The Supreme Court of India, in a significant interim order on September 15, 2025, declined to grant a wholesale stay on the operation of the controversial Waqf (Amendment) Act, 2025. However, a bench comprising Chief Justice of India B.R. Gavai and Justice Augustine George Masih suspended the implementation of several key provisions, including those granting revenue officers the power to alter the status of alleged government properties declared as waqf and a new requirement for creating a waqf.

The Court was hearing a batch of writ petitions challenging the constitutional validity of the amendment act, which petitioners argued was violative of Articles 14, 15, 19, 21, 25, 26, 29, 30, and 300A of the Constitution. While rejecting the plea for a complete stay, the Court issued specific directions to balance the equities between the parties pending a final hearing.

Background of the Challenge

The writ petitions mounted a comprehensive challenge against numerous amendments introduced by the 2025 Act to the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995. The primary contentions revolved around the abolition of ‘waqf by user,’ new rules for the declaration and registration of waqf properties, changes in the composition of the Central Waqf Council and State Waqf Boards, and a new mechanism for determining if a waqf property is actually government-owned.

Arguments of the Petitioners

Leading the arguments for the petitioners, Senior Advocate Shri Kapil Sibal contended that the “real intention behind” the impugned Act was to “take away or expropriate the Waqf properties” under the guise of protecting them.

The key arguments advanced by the petitioners’ counsels, including Shri Sibal, Dr. Rajeev Dhavan, Dr. A.M. Singhvi, Shri C.U. Singh, and Shri Huzefa Ahmadi, were:

• Abolition of ‘Waqf by User’: The deletion of the ‘waqf by user’ concept and the new mandatory requirement for a waqf deed were assailed as contrary to established Islamic law, which recognizes oral gifts.
• Government Property Determination (Section 3C): The new Section 3C was described as “totally arbitrary.” It allows a designated officer, above the rank of Collector, to determine if a property is government-owned. The petitioners argued that even before the inquiry concludes, a proviso to the section arbitrarily dictates that the “property in question will cease to be Waqf property.” This, they submitted, leaves the waqf “high and dry, knocking on the doors of the Waqf Tribunal” after its property status is unilaterally changed in revenue records.
• Composition of Council and Boards (Sections 9 & 14): It was argued that the amended composition could lead to a majority of non-Muslim members in both the Central Waqf Council and State Boards, permitting them to “interfere in the affairs of the Waqfs, thereby directly affecting the rights of the Muslims to independently manage the affairs of their religious practice.”
• Creation of Waqf (Section 3(r)): The new requirement for a person to “show or demonstrate” that they have been “practicing Islam for at least five years” to create a waqf was challenged as “totally discriminatory and arbitrary” and violative of Article 15.
• Protected Monuments (Section 3D): The provision voiding waqf declarations on protected monuments was called discriminatory, as no similar restriction exists for monuments used by other religions.
• Tribal Lands (Section 3E): This section, which bars the declaration of land belonging to Scheduled Tribes as waqf property, was termed a “direct attack on the religious freedom” of tribal members who practice Islam.
• Mandatory Registration (Section 36): The petitioners argued that the combined effect of mandatory registration and the bar on legal proceedings for unregistered waqfs creates a “Catch 22 situation,” leaving them remediless.

Submissions of the Respondents

Representing the Union of India, Solicitor General Shri Tushar Mehta defended the amendments, arguing they were enacted to address systemic issues and protect public property. He asserted that there is a strong “presumption of validity” in favour of legislation.

The key arguments from the respondents were:

• Legislative Intent: The amendments were necessary to “keep pace with the changing societal conditions and enact or amend existing laws to deal with challenges.”
• ‘Waqf by User’ Misuse: The Solicitor General argued that the concept of ‘waqf by user’ had become a “safe haven for encroachment of Government properties and private properties.” He cited the case of State of Andhra Pradesh v. Andhra Pradesh State Wakf Board, where 1,654 acres of government land were declared waqf property. The abolition of this concept, he stated, is prospective and aims to curb such misuse.
• Government Property (Section 3C): Shri Mehta submitted that the provision is a mechanism to protect public property held in trust by the government. He assured the Court that title determination would ultimately be made by the Waqf Tribunal and higher courts, and possession could not be taken away based solely on the designated officer’s report.
• Composition of Council and Boards: He contended that the role of these bodies is primarily advisory and secular, dealing with administration and finances, not religious interference. He also stated that the Ministry of Minority Affairs had assured the Joint Parliamentary Committee (JPC) that Muslim members would remain in the majority.
• Protected Monuments (Section 3D): The amendment was proposed by the Archaeological Survey of India (ASI) due to difficulties in preserving protected monuments that were being altered by waqf authorities. He pointed out that religious observances are already protected under Section 5(6) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
• Tribal Lands (Section 3E): This provision was defended as a necessary measure to uphold the “constitutional obligation to safeguard” the property rights of Scheduled Tribes, whose cultural and economic identity is “intrinsically tied to the land held by them.”

Court’s Analysis and Interim Order

The Supreme Court began its analysis by reiterating the established legal principle that courts should be “very slow in granting interim relief by way of staying the provisions of an enactment.” Such relief, the Court noted, is reserved for “rare and exceptional cases” where a law is either beyond legislative competence, ex-facie unconstitutional, or manifestly arbitrary.

After examining the legislative history of waqf enactments since 1923, which revealed a consistent problem of “mismanagement” and the use of waqf as a “‘clever device’ to tie up property,” the Court conducted a prima facie review of the challenged provisions.

The Court’s prima facie findings led to the following directions:

1. Stay on Requirement for Creating Waqf: The provision in Section 3(r) requiring a person to show they have been “practicing Islam for at least five years” to create a waqf is stayed until the government frames rules and provides a mechanism for its determination.
2. Stay on Provisions Regarding Government Property: The Court stayed the proviso to Section 3C(2), which treated a property as non-waqf during an inquiry. It also stayed subsections (3) and (4) of Section 3C, which empower a designated officer to make corrections in revenue records and direct the Waqf Board to do the same. The Court held that determination of title is a judicial or quasi-judicial function.
3. Protection from Dispossession: The Court directed that no waqf shall be dispossessed, nor shall any record be altered, based on a Section 3C inquiry until the matter is finally decided by the Waqf Tribunal under Section 83. However, it also ordered that no third-party rights can be created in such disputed properties during this period.
4. Cap on Non-Muslim Members: Accepting the Solicitor General’s submission, the Court directed that the Central Waqf Council shall not consist of more than 4 non-Muslim members (out of 22) and the State Waqf Boards shall not consist of more than 3 non-Muslim members (out of 11).
5. Appointment of CEO: While not staying the provision, the Court directed that an “effort should be made to appoint the Chief Executive Officer of the Board… from amongst the Muslim community.”

The Court found no prima facie case to stay other challenged provisions, including the prospective abolition of ‘waqf by user,’ the bar on declaring tribal lands as waqf, the application of the Limitation Act, 1963 to waqf properties, and the provisions concerning protected monuments.

The Court clarified that its observations are prima facie for the purpose of deciding the interim relief and will not prejudice the final hearing on the constitutional validity of the Act.