Waqf Amendment Act 2025: Supreme Court Upholds Most Provisions, Stays Sections on Govt Property, 5-Year Islam Practice Rule - 2025-09-15

Supreme Court Upholds Waqf Amendment Act 2025, Partially Stays Contentious Provisions

New Delhi: In a landmark interim order, the Supreme Court of India has upheld the constitutional validity of the majority of provisions in the controversial Waqf (Amendment) Act, 2025. The Court, led by Chief Justice of India B.R. Gavai, declined to grant a blanket stay on the Act but selectively stayed the operation of certain contentious clauses, including the power of a designated officer to alter revenue records for alleged government properties and the requirement for a person to demonstrate five years of practicing Islam to create a Waqf.

The bench issued a series of directions to balance the interests of the Waqf boards and the government pending the final hearing of a batch of writ petitions challenging the Act's constitutionality.

The Legal Challenge

The case involved a series of writ petitions arguing that the Waqf (Amendment) Act, 2025, was unconstitutional and violated fundamental rights under Articles 14, 15, 19, 21, 25, 26, 29, 30, and 300A of the Constitution. The petitioners contended that the Act's true purpose was not to protect Waqfs but to expropriate their properties.

Key provisions under challenge included: - The prospective de-recognition of 'Waqf by user'. - Special provisions allowing government-designated officers to determine if a property is 'Government property'. - Changes in the composition of the Central Waqf Council and State Waqf Boards, potentially allowing a non-Muslim majority. - A new requirement for a person to prove they have been "practicing Islam for at least five years" to create a Waqf.

Petitioners vs. Respondents: Core Arguments

Arguments for the Petitioners:

Senior Counsel Kapil Sibal, leading the petitioners' arguments, asserted that the Act was a "wholesale takeaway" of the community's rights. He argued that Section 3C gave arbitrary power to a state-nominated officer to declare a Waqf property as government-owned, leading to automatic changes in revenue records even before the matter could be adjudicated by the Waqf Tribunal.

The petitioners also assailed the changes to the composition of the Waqf Council and Boards, stating that allowing a non-Muslim majority would constitute direct interference in the religious affairs of the Muslim community. The deletion of 'Waqf by user' and mandatory registration requirements were described as contrary to established Islamic law and judicial precedent.

Arguments for the Union of India:

Solicitor General Tushar Mehta, representing the Union of India, defended the amendments as necessary reforms to prevent the misuse of Waqf laws. He highlighted instances where the concept of 'Waqf by user' was exploited to encroach upon vast tracts of government and private land.

He submitted that the government, as a trustee of public property, has a duty to protect it. Regarding the composition of the boards, Mehta argued that their functions are largely secular (financial management, surveys, etc.) and do not interfere with religious practices. He assured the court that the number of non-Muslim members would be limited. The legislative changes, he contended, were based on the recommendations of various committees, including the Joint Parliamentary Committee (JPC), to bring transparency and curb mismanagement.

Supreme Court's Analysis and Interim Directions

The Court, after a detailed review of the legislative history of Waqf law since 1923, underscored the high threshold for staying a parliamentary enactment. It reiterated the principle that there is always a presumption in favour of a law's constitutionality.

While rejecting the plea for a complete stay, the Court found certain provisions to be prima facie arbitrary and issued specific directions to balance the equities:

• 5-Year Practice of Islam Rule Stayed: The requirement in Section 3(r) for a person to show they have been "practicing Islam for at least five years" to create a Waqf has been stayed until the government frames rules and a mechanism for its determination. The court noted that while the provision aims to prevent misuse, its immediate implementation is not feasible without a clear procedure.

• Government Property Determination Curtailed: The Court stayed the proviso to Section 3C(2), which treated a property as non-Waqf during the pendency of an inquiry by a designated officer. Crucially, it also stayed sub-sections (3) and (4), which empowered the officer to make corrections in revenue records. The judgment emphasized that the determination of property titles is a judicial or quasi-judicial function that cannot be entrusted to a revenue officer.

• Status Quo on Possession and Records: The Court directed that until the Waqf Tribunal and High Court finally decide the title of a disputed property under Section 3C, Waqfs shall not be dispossessed, and no entries in revenue or board records shall be altered. However, no third-party rights can be created on such properties during the inquiry.

• Composition of Council and Boards Capped: Accepting the Solicitor General's assurance, the Court directed that the Central Waqf Council shall not have more than 4 non-Muslim members (out of 22), and State Waqf Boards shall not have more than 3 non-Muslim members (out of 11).

• Appointment of CEO: While not staying the provision allowing a non-Muslim to be the Chief Executive Officer (CEO) of a Board, the Court directed that an effort should be made to appoint a person from the Muslim community to the post.

Final Decision

The Supreme Court's order provides temporary relief to the petitioners on some of the most contentious amendments while allowing the larger framework of the Waqf (Amendment) Act, 2025, to operate. The Court clarified that its observations are prima facie for the purpose of deciding the interim relief and will not prejudice the final hearing on the constitutional validity of the Act. The matter will be heard in detail at a later date.