Institute of Legal and Management Studies

The Supreme Court today(September 14) stayed certain provisions of the Waqf (Amendment) Act 2025, while observing that several other provisions did not require any interference at the interim stage.

The key points from the interim order passed by the bench of Chief Justice of India BR Gavai and Justice AG Masih are as follows :

1. Stayed the condition that a person should be a practitioner of Islam for at least 5 years till rules are framed by State Governments to provide a mechanism to determine this question. Without such a mechanism, the provision can lead to arbitrariness, the Court said.

2. Stayed the provisions allowing the Government to derecognise a Waqf land during the pendency of decision by the Government officer on the dispute of encroachment. SC said allowing the Collector to decide the dispute is against the separation of powers.

Till the question of title is decided by the Tribunal or the Court, the disputed Waqf land will not be affected. At the same time, the Court said that no third-party rights should be created on such lands till the dispute is decided.

3. Directed that in the Central Waqf Council, the non-Muslim members cannot exceed 4. In State Waqf Boards, the non-Muslim members cannot exceed 3.

4. Did not stay the provision allowing a non-Muslim to be the CEO of the State Waqf Board. However, the Court said that as far as possible, a Muslim person should be appointed.

5. Did not interfere with the condition of registration.

The Court did not interfere with the other major contentious provisions, such as the abolition of 'waqf-by-user', bar on creating waqfs over Scheduled Areas and protected monuments, condition that only Muslims can create Waqfs, application of the Limitation Act to the Waqf Act etc.

The details of the orders are as follows :

CJI BR Gavai, who pronounced the order, started by saying that only in the rarest of rare cases a legislation can be stayed by the Court. The Court noted that though the entire Amendment Act was under challenge, the challenge was essentially to certain specific provisions.

The Court observed that "no case was made to stay the provisions of the entire statute."

"The prayer for stay of the impugned Act is, therefore, rejected. However, while doing so, in order to protect the interest of all the parties and balance the equities during pendency of this batch of matters, we issue the following directions,"CJI observed.

On 5-year Islamic practice condition

The provision in Section 3(1)(r) that a person should be a practitioner of Islam for 5 years to create a Waqf shall stand stayed till State Governments frame rules for providing a mechanism to determine the question as to whether a person has been practising Islam for 5 years or more. Without such a mechanism, the provision will lead to an "arbitrary exercise of power."

The Court however observed that this condition of 5-year practice is not per se arbitrary as it was necessary to prevent misuse. The Court observed that the possibility of any person not belonging to Muslim community, converting to the Islamic religion only in order to take benefit of the protection of Waqf Act so as to defeat creditors and evade the law under the cloak of a plausible dedication cannot be ruled out. However, since there is no mechanism for determination, the Court stayed the provision till the Rules are made by the States.

On de-recognition of Waqf lands during the pendency of the dispute with Govt

2. The proviso to Section 3C(2) that a property, which is in dispute with the Government over alleged encroachment, will not be treated as a Waqf Property till the designated officer of the Government submits his report on whether there is encroachment has been stayed. Also, the Court stayed Section 3C(3), which says - "In case the designated officer determines the property to be a Government property, he shall make necessary corrections in revenue records and submit a report in this regard to the State Government" . The Court also stayed Section 3C(4) which says that the State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate correction in the records".

"Permitting the Collector to determine the rights of the properties is against the doctrine of separation of powers as the Executive can't be permitted to determine the rights of citizens," CJI Gavai observed.

"It is directed that 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. However, upon commencement of an inquiry under Section 3C of the Amended Waqf Act till the final determination by the Tribunal under Section 83 of the Amended Waqf Act, subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties," the Court's order stated.

On non-Muslims in Boards.

"It is directed that insofar as Central Waqf Council constituted under Section 9 of the Amended Waqf Act is concerned, it shall not consist of more than 4 non- Muslim members out of 22. Equally, insofar as the Board constituted under Section 14 of the Amended Waqf Act is concerned, it is directed that it shall not consist of more than 3 non-Muslim members out of 11."

"Though we are not inclined to stay Section 23, we direct that as far as possible, efforts should be made to appoint the Chief Executive Officer of the Board, who is the ex-officio Secretary, from amongst the Muslim community."

The Court did not interfere with the provision mandating registration, saying that it is not a new requirement, as this condition was there from 1995 till 2013 as well.

The Court clarified that its directions are based on the prima facie view and will not preclude the parties from making submissions with regard to the validity of the provisions of the Act in final hearing.

The Court had reserved the order on May 22 after hearing the parties over three days. The petitions are filed challenging the constitutionality of the sweeping changes made to the Waqf law by the amendments passed by the Parliament in 2025.

In April, after a bench led by former CJI Sanjiv Khanna expressed some prima facie reservations about some of the provisions, the Union undertook that non-Muslims would not be appointed to the State Waqf Boards and the Central Waqf Councils during the pendency of the matter. The Centre also agreed that no Waqf, including a Waqf by user, whether declared by way of notification or by way of registration, shall be de-notified, nor will their character or status be changed.

AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, Samastha Kerala Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, TMC MP Mahua Moitra, Indian Union Muslim League, All India Muslim Personal Law Board, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, Communist Party of India, DMK etc., are some of the petitioners.

Intervention applications have been filed by five BJP-led States: Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra, supporting the legislation. Recently, the State of Kerala has also filed an intervention supporting the 2025 Amendment.

Common provisions challenged in all petitions

Omission of 'waqf by user' provision, inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board, pre-condition of 5 years as practising Muslim for create of waqf, allowing Government to decide disputes regarding encroachment of government property, application of Limitation Act to Waqf Act, invalidating Waqf created over ASI protected monuments, restrictions on creating Waqfs over scheduled areas, limiting the inclusion of women members to two in the Council and Boards, diluting waqf-alal-aulad, renaming 'Waqf Act, 1995 to "Unifed Waqf Management, Empowerment, Efficiency and Development," providing appeal against the Tribunal's order etc., are some of the provisons under challenge.

Also from the judgment - Abolition Of 'Waqf By User' Is Not Arbitrary Prima Facie : Supreme Court

Case Details: IN RE THE WAQF (AMENDMENT) ACT, 2025 (1)|W.P.(C) No. 276/2025

Citation : 2025 LiveLaw (SC) 909

Click Here To Read/Download Judgment