Supreme Court Flags Key Aspects of Waqf Act, Hints at Potential Stay Amidst "Exceptional Circumstances"

New Delhi, India – The Supreme Court of India has raised significant concerns regarding the Waqf (Amendment) Act 2025, signaling a potential stay on certain contentious provisions of the legislation. A three-judge bench, led by Chief Justice of India (CJI) Sanjiv Khanna, Justices P V Sanjay Kumar and KV Viswanathan, indicated it was considering an interim order to address issues related to the concept of ‘waqf-by-user’, the representation of non- Muslim s on Waqf Boards, and the enhanced powers granted to District Collectors concerning disputed Waqf properties.

The court's observations came during a hearing on Wednesday, where it admitted a batch of petitions challenging the constitutional validity of the 2025 Act. CJI Khanna, in oral remarks, emphasized the exceptional nature of the situation, stating, “We do not stay a legislation normally at this stage of the challenge unless in exceptional circumstances. This appears to be an exception.” He specifically highlighted the court's apprehension regarding the potential consequences of de-notifying ‘waqf-by-user’, a concept deeply embedded in Waqf law for decades.

Key Concerns Raised by the Supreme Court

The Supreme Court's scrutiny is primarily focused on three pivotal aspects of the Waqf Act 2025:

Waqf-by-User : The 2025 Act seemingly does away with the established concept of ‘waqf-by-user’. This legal principle recognizes land used for Muslim religious or charitable purposes for an extended period as deemed Waqf property, even if not formally registered. The court expressed concern that eliminating this concept could destabilize the status of numerous existing Waqf properties established through long-standing usage. CJI Khanna noted the inherent difficulty in registering ‘waqf-by-user’ properties retrospectively, acknowledging potential misuse but also emphasizing the existence of genuine cases. He questioned the practicality of expecting centuries-old mosques, potentially predating British land registration systems, to produce formal registered sale deeds to prove their Waqf status.

Representation of Non- Muslim s on Waqf Boards : Another point of contention is the Act’s provisions regarding the representation of non- Muslim s on Waqf Boards and the Central Waqf Council. While the specifics of the provision were not detailed in the provided news source, the Supreme Court indicated it was considering staying this provision, suggesting concerns about its implications for the management and governance of Waqf properties traditionally overseen by Muslim bodies.

Powers of the District Collector : The 2025 Act grants significant powers to the District Collector to identify properties as government land, which would automatically cease their Waqf status until a court determines otherwise. The Supreme Court expressed reservations about this provision, indicating a willingness to keep the effect of the Collector's determination in abeyance. The bench questioned the definition of "disputed" property under the Act and raised concerns that this provision could potentially lead to arbitrary changes in the status of Waqf lands based on executive action, without sufficient judicial oversight. CJI Khanna specifically questioned the term "in dispute," asking if it referred to matters already before a court or a broader definition, highlighting potential ambiguities and overreach.

Government's Stand and Historical Context

Solicitor General Tushar Mehta, representing the government, argued against an interim stay. He asserted that the registration of Waqf properties has been mandatory since the first Waqf Act in 1923, implying that unregistered ‘waqf-by-user’ properties might not be legitimately considered Waqf. Mehta traced the legislative history of Waqf Acts from 1923, 1954, 1995, and the present amendment, emphasizing the continuous requirement for registration.

However, Senior Advocate Abhishek Manu Singhvi , appearing for the petitioners challenging the Act, countered that approximately 4 lakh out of 8 lakh existing Waqfs are potentially ‘waqf-by-user’ properties. He argued that the new provisions effectively render these properties "non-existent" with a "stroke of a pen." Singhvi cited the Supreme Court's Ayodhya judgment, which had recognized ‘waqf-by-user’ as a centuries-old, established concept. He urged the court to stay the "pernicious provisions" that have come into immediate effect.

Senior Advocate Kapil Sibal, also representing petitioners, termed the amendments as a "parliamentary usurpation of the faith of 200 million citizens." This strong statement underscores the gravity and the deeply felt concerns surrounding the amended legislation within the Muslim community.

Interim Relief and Future Hearings

While the Supreme Court acknowledged the general principle of judicial restraint in staying legislation at a preliminary stage, it reiterated the "exceptional circumstances" in this case. The court emphasized its desire to maintain the status quo while the matter is under consideration, ensuring that the rights of parties are not drastically affected pending a final decision.

Initially, the bench was poised to issue an interim order, but Solicitor General Mehta requested more time to present the government's perspective and relevant documentation. Consequently, the Court deferred passing any interim orders and scheduled the next hearing for April 17th at 3 pm. However, in a subsequent development a day after the hearing, the government assured the Supreme Court that until the next hearing on May 5th, it would not make any appointments to Waqf Boards or alter the status of notified and registered Waqfs, including ‘waqf-by-user’ properties.

Taking this assurance on record, the Supreme Court clarified that the May 5th hearing will be preliminary, and interim orders will be considered if necessary. The Court granted the Union government, state governments, and Waqf Boards seven days to file preliminary replies to the petitions and allowed petitioners five days for rejoinder affidavits. This deferral provides a brief respite and an opportunity for the government to address the Court's concerns and submit further justifications for the amended Act.

Legal and Societal Implications

The Supreme Court's inclination to consider a stay on parts of the Waqf Act 2025 highlights the significant legal and societal implications of this legislation. The potential disruption to established Waqf properties, particularly those recognized under the ‘waqf-by-user’ principle, raises concerns about religious freedom, property rights, and the management of religious endowments.

For legal practitioners, this case is crucial. It involves fundamental questions about the interpretation and application of Waqf law, the balance between legislative authority and judicial review, and the protection of minority rights. The case also underscores the complexities of land law and historical property rights, particularly in the context of religious institutions with long and often undocumented histories.

The court's emphasis on maintaining the status quo reflects a cautious approach, aiming to prevent irreversible changes before a thorough examination of the Act's validity. The upcoming hearings and the government's response will be closely watched by legal experts, religious organizations, and the wider public, as they will determine the future trajectory of Waqf law in India and its impact on a vast number of properties and institutions. The case presents a compelling example of the judiciary's role in scrutinizing legislation that potentially impacts fundamental rights and established legal principles, especially within the delicate framework of religious property law.

Further Developments Expected: The Supreme Court will reconvene on May 5th to further deliberate on the matter and potentially issue interim orders, based on the preliminary replies from the government and other parties. The legal community awaits these proceedings with keen interest, anticipating crucial decisions that could reshape the landscape of Waqf administration and jurisprudence in India.