SC refuses to stay Waqf Act, stalls certain contentious provisions

The Supreme Court on Monday refused to stay on the Waqf (Amendment) Act 2025 which did away with the concept of ‘waqf by user’ even as it stalled implementation of certain contentious provisions, including the requirement of being a practicing Muslim for five years to dedicate any property for waqf.

“We have held that presumption is always on the constitutionality of the statute. Only in rarest of the rare cases it’s stayed,” said a Bench of CJI BR Gavai and Justice AG Masih which had reserved its verdict on May 22.

During the hearing on interim stay of the Act, the Bench had in May said, “There is a presumption of constitutionality in favour of every statute. For interim relief, you have to make out a very strong and glaring case. Otherwise, presumption of constitutionality will be there…we don't need to say more.”

On Monday, the top court also chose not to interfere with the requirement of mandatory registration of Waqfs, saying there was nothing new about it as the condition was there in previous Acts of 1923 and 1995 that existed till 2013.

The Bench, however, said, “The provision in Section 3(1)(r) that a person should be a practitioner of Islam for five years to create a Waqf has been stayed till state governments frame rules for providing mechanism to determine the question whether a person has been practising Islam for five years or more. Without such a mechanism, the provision will lead to an arbitrary exercise of power,” it said.

It also stayed a provision that allowed the designated officer to decide the dispute if a Waqf property has encroached upon a Government property.

“An Executive Officer cannot be permitted to adjudicate on the rights of citizens… This will violate separation of powers. However, till adjudication happens by the Tribunal, no third party rights can be created against any parties,” the Bench said.

While refusing to stay the provision allowing nomination of non-Muslim members to Waqf Boards, the top court said the ex-officio member of the Board, as far as possible, should be a Muslim.

For the Central Waqf Council, it shall not consist of more than four non-Muslim members while for State Waqf Boards, it shall not include more than three non-Muslim members, it said.

The top court, however, clarified that its observations made in the order were of prima facie nature and the parties were free to make further submissions on petitions challenging the validity of the Waqf (Amendment) Act 2025.

The Waqf (Amendment) Act 2025 was notified on April 5, 2025. The top court had on April 17 deferred passing any interim orders in the matter after the Centre undertook not to make any appointments to waqf councils and waqf boards or de-notify existing waqf properties -- including ‘waqf by user’ or ‘waqf by deed’ properties already declared by notification or gazetted.

The Bench had identified three key issues -- Waqf by user, nomination of non-Muslims to the Waqf Council and state Waqf Boards, and identification of government land as Waqf property – for consideration at this stage for passing interim orders.

‘Waqf by user’ was a practice where a property was recognised as a Muslim endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there wasn't a formal, written declaration of waqf by the owner.

On behalf of the petitioners, senior counsel Kapil Sibal had contended that an irreparable injury would be caused if the provisions were activated.

Alleging that the amendment was a “complete departure from historical legal and constitutional principles” and a means to “capture waqf through a non-judicial process”, he had said, “This is a case about the systematic capture of waqf properties. The government cannot dictate what issues can be raised...”

Contending that waqf isn’t an essential part of Islam and waqf boards discharge secular functions, the Centre has defended the inclusion of non-Muslims in waqf boards, saying the amended law dealt with secular aspects of waqf.

Solicitor General Tushar Mehta had submitted that “Waqf is an Islamic concept. But it is not an essential part of Islam… Waqf is nothing but just charity in Islam… Charity is recognised in every religion. It is part of Christianity also, but the Supreme Court says it’s not an essential part. Hindus have a system of daan, Sikhs also have (charity). But it’s not an essential part of any religion.”

Under the amended waqf law, only self-owned resources can be declared as Waqf after ensuring the inheritance rights of women and children and the DC will determine that land being donated by a Muslim is actually in his ownership. It also empowers state governments to nominate members, including representatives from backward classes and both Shia and Sunni communities to Waqf boards.