Supreme Court Partially Stays Waqf Amendment Act, Citing Separation of Powers and Arbitrariness

New Delhi – In a significant interim order with far-reaching constitutional implications, the Supreme Court of India on Monday, September 15, 2025, partially stayed several contentious provisions of the Waqf (Amendment) Act, 2025. While refusing to grant a blanket stay on the entire statute, a bench comprising Chief Justice of India BR Gavai and Justice AG Masih found a prima facie case for intervention on specific sections that it flagged as potentially arbitrary and violative of the doctrine of separation of powers.

The order provides interim relief to over 100 petitioners who challenged the Act's constitutionality, arguing it amounted to a "creeping acquisition" of Muslim properties and a "complete departure from historical legal and constitutional principles." The Central government, represented by Solicitor General Tushar Mehta, had defended the Act as a necessary measure to counter "rampant encroachment" and argued for the "presumption of constitutionality" that attaches to any law passed by Parliament.

The bench, after three days of extensive hearings in May, delivered a nuanced order that carefully balances this presumption against the need to protect fundamental rights pending a final decision. "We have held presumption is always on constitutionality of statute and in rarest [cases] it can be done," the Court noted. "We have found that entire act is challenged... [but a case] was not made out for [staying the] entire statute. But sections which are under challenge, we have granted stay."

The Doctrine of Separation of Powers Takes Center Stage

The most constitutionally significant aspect of the Court's order is the stay on Section 3C, which empowered a District Collector—an executive officer—to conduct inquiries and determine the rights over properties claimed as waqf. The petitioners had argued that this provision allowed an executive authority to usurp judicial functions, effectively creating a parallel adjudicatory mechanism outside the established tribunal system.

The Supreme Court concurred with this fundamental objection. Chief Justice Gavai explicitly stated that allowing an executive to adjudicate on property rights would be a clear breach of the separation of powers, a basic structure of the Indian Constitution. "Permitting the collector to determine the rights is against the separation of powers. An executive can't be permitted to determine the rights of citizens," the Chief Justice observed during the pronouncement.

By staying this provision, the Court has reinforced the principle that the determination of civil rights, particularly complex title disputes, must remain within the purview of the judiciary or quasi-judicial tribunals. The order further stipulated that until the title is finally decided by an appropriate forum, the status quo of the properties shall be maintained, ensuring that "neither waqf will be dispossessed of the property." This provides critical protection against any precipitative action by the executive based on the now-stayed provisions.

Curbing Potential Arbitrariness in Defining a ‘Waqif’

Another key provision that faced the Court's interim stay was Section 3(r), which introduced a condition that a person creating a waqf (a waqif ) must have been a "practising Islam for five years." Petitioners, including Congress MP Imran Pratapgarhi, had assailed this provision as impractical and an intrusive inquiry into matters of personal faith. "How will the Govt decide who has been a practising Muslim for 5 years? This is a matter of faith," Pratapgarhi commented after the verdict.

The bench found merit in the argument that this provision, without a defined mechanism or objective criteria, could lead to abuse. The Court stated that this condition "would lead to arbitrary exercise of powers" until clear rules are formulated to determine such a status. Consequently, it stayed the implementation of the five-year requirement, linking the stay to the government's future action of framing appropriate, non-arbitrary rules. This demonstrates a judicial check on legislative ambiguity that could infringe upon individual rights.

Directions on the Composition of Waqf Boards

The petitioners had also challenged amendments altering the composition of the Central Waqf Council and State Waqf Boards, contending that their administration should primarily remain with members of the Muslim community. While the Court did not fully stay the provisions allowing non-Muslim members, it issued specific interim directions to cap their numbers.

The order mandates that for the duration of the interim stay: - The Central Waqf Council "shall not consist of more than 4 non-muslim members." - State Waqf Boards shall not have more than 3 non-Muslim members.

Furthermore, regarding the appointment of the Chief Executive Officer (CEO) under Section 23, the Court did not stay the provision allowing a non-Muslim to be appointed. However, it added a significant rider, directing that the CEO "must be from the Muslim community as far as possible." This guidance suggests a judicial preference for maintaining the traditional administrative character of the boards while the larger constitutional question is sub-judice.

Provisions Not Stayed and the Road Ahead

The Court clarified that its order was surgical and not a wholesale rejection of the 2025 amendments. Notably, it did not interfere with the provision mandating the registration of waqf properties, observing that such a requirement has existed in various forms since the 1995 Act. Advocate Anas Tanweer, one of the petitioners, noted that while the provision was not stayed, the Court "has apparently extended the time limit."

The partial stay sets the stage for a detailed constitutional examination of the Waqf (Amendment) Act, 2025. The core issues, including the power to denotify waqf properties and the removal of the 'waqf by user' concept—where long-term use for religious or charitable purposes could establish a property as waqf—remain to be adjudicated.

The legal community has largely welcomed the interim order as a balanced intervention. Advocate M.R. Shamshad, representing some petitioners, described the verdict as "reasonably good," stating, "All the issues except one which relate to Waqf by user, have been addressed by the Supreme Court. Most of them have been stayed."

This interim order serves as a crucial check on legislative and executive power, reaffirming the judiciary's role as the guardian of the Constitution's basic structure. As the case proceeds to a final hearing, the legal fraternity will be closely watching the Court's detailed reasoning on the interplay between religious freedoms, property rights, and the foundational principles of Indian constitutionalism.