SC refuses to stay Waqf Act, but bars some clauses

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

“In the totality of the circumstances, we do not find that any case is made out to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected,” said a Bench of CJI BR Gavai and Justice AG Masih, which had reserved its verdict on May 22.

“Not only that, we are also of the view that if the legislature, in 2025, finds that on account of the concept of “Waqf by user”, huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary,” it said.

‘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.

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 existed in previous Acts of 1923 and 1995 until 2013. However, in order to protect the interest of all the parties and balance the equities during pendency of the matter, the Bench stayed Section 3(r) that requires a person to be a practitioner of Islam for five years to create a Waqf till state governments framed rules for providing mechanism to determine if 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.

The top court also stayed sub-section (2) of Section 3C of the amended Act 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 pronouncing the verdict.

“It is directed that insofar as the Central Waqf Council constituted under Section 9 of the amended Waqf Act is concerned, it shall not consist of more than four 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 three non-Muslim members out of 11,” it ordered.

While refusing to stay Section 23 of the Amended Waqf Act, the Bench directed that “as far as possible, an effort should be made to appoint the Chief Executive Officer of the Board who is the ex-officio Secretary from amongst the Muslim community.”

The Bench refused to stay Section 3D (declaration of protected monument or protected area as waqf to be void) of the amended Act, according to which any declaration or notification of waqf property shall be void if such protected property was a protected monument or protected area under the Ancient Monuments Preservation Act, 1904, or the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

It also upheld the validity of Section 3D of the amended Waqf Act, which aimed at safeguarding the interests of one of the most marginalised and vulnerable sections i.e. the Scheduled Tribes.