Half a Win: SC Stay on Waqf Amendments Highlights Procedural Flaws

The efficacy of this interim relief is contingent upon subsequent authority action, writes Areeb Uddin Ahmed.

The Court’s stay order halts the five-year practice rule, caps non-Muslim seats, and blocks arbitrary land powers under the Waqf Amendment Act.

(Photo: Aroop Mishra/The Quint)

In a significant ruling regarding the Waqf Amendment Act, 2025, the Supreme Court has provided substantial relief to petitioners challenging the constitutionality of the Act.

While refraining from staying the entire legislation, the bench of Chief Justice BR Gavai and Justice AG Masih stayed some of its most contentious provisions, marking a critical check on potential executive overreach.

This order serves as a vital affirmation that the process of reforming religious endowments must adhere to constitutional principles and cannot be implemented through arbitrary mechanisms.

The interim directions in the pending petitions have been passed on a batch of petitions filed in pursuance of the Waqf Amendment Bill and Act of 2025 on the ground that the provisions of the Act are in contravention and violative of Articles 14, 15, 19, 21, 26, 29, 30, and 300A of the Indian Constitution.

What Stays, What Goes

As an interim relief to the petitioners, the Supreme Court has stayed key provisions of the Waqf Amendment Act 2025.

1. Five-year practice: The condition requiring a person to be a practitioner of Islam for at least five years as been stayed, till rules are framed by the concerned State governments to provide a process to determine the said question.  

2. Power to Derecognise Land: The provision allowing the government to de-recognise a Waqf land during the pendency of an encroachment dispute decided by a Collector has been stayed. The Court held that disputed Waqf land cannot be affected until a Tribunal or Court decides the title, though no third-party rights can be created on such land in the interim.         

3. Cap limit on non-Muslim members: The Supreme Court has directed that in the Central Waqf Council, the non-Muslim members cannot exceed four members and in State Waqf Boards, the non-Muslim members cannot exceed three. It, however, declined to stay the appointment of a non-Muslim CEO, although stating that a Muslim should be appointed as far as possible.

The ruling on interim measures passed by the Supreme Court is well balanced and prima facie reflects that the amendments have been carried out in a hurry and that too, without application of ‘practical mind’. The Court, however, did not interfere with other contentious provisions of the Act such as the abolition of ‘waqf-by-user.’

The interim directions are noteworthy for their departure from the customary judicial deference afforded to legislative enactments, which are presumed constitutional until proven otherwise.

The bench demonstrated a readiness to conduct a rigorous prima facie review, intervening to stay operational provisions where it identified a palpable risk of arbitrary application due to the absence of a procedural framework. This approach underscores the Court's role in safeguarding constitutional rights from laws that, while valid on their face, lack the necessary safeguards to prevent executive overreach in their implementation.

A critical observation is that the suspension of key provisions—most notably the five-year practice requirement under Section 3(1)(r)—hinges substantially on procedural infirmities, specifically the lack of duly framed rules to guide the exercise of power.

Consequently, the efficacy of this interim relief is contingent upon subsequent authority action. The stay, in this sense, is provisional - it returns the ball to the state legislatures' court.

Should states promulgate rules that establish a non-arbitrary mechanism for determining religious practice, the constitutional challenge to the substantive provision will be revived, requiring the Court to adjudicate on the merits of the law itself, shorn of its initial procedural deficiencies.

The interim order thus represents a pause, not a final resolution, on the path to a full constitutional determination.

Stay on 5-Year Condition: Just Part of Process?

It is pertinent to point out that this rule has been stayed because there are no rules in operation by the State or the Central Board for 'practicing Muslims', and not because the provision is ‘arbitrary’. The Court did not go into the question of arbitrariness as a whole, rather opting to choose the easier path of halting the provisions until there are rules in operation by the government and the board concerned.

Another question, with regard to the validity of the same provision as above, which required that the ownership of the property dedicated as Waqf should only rest with the person dedicating it.  

Based on the legal and theological reasoning presented, the Supreme Court held that the provision is not arbitrary. The Court affirmed this view by relying on the principle from 'Mulla's Treatise', that only an owner can create a Waqf, and by underscoring the religious nature of Waqf as a form of charity rooted in Islamic doctrine, as illustrated by key Quranic verses such as those in Surah Al-Baqarah.

Since the act of creating a Waqf is fundamentally a religious endowment requiring ownership and an intention to donate one’s own property in the way of Allah, the Court found it prima facie reasonable to limit this ability to members of the Muslim faith and said that a charity cannot be done by a person of a property or money owned by a third person or a property owned by the Government.

Inclusion of Non-Muslim Members

This was another contentious provision, where the Court did not grant a complete stay on the amended provisions governing the composition of the Central Waqf Council and State Waqf Boards but instead curtailed potential non-Muslim membership.

The petitioners had vehemently argued that the amended Sections 9 and 14 of the Act, if read literally, could allow for a majority of non-Muslim members—potentially 12 out of 22 in the Council and 7 out of 11 in a State Board—which would constitute a severe intrusion into the religious autonomy of these Muslim institutions. The Court acknowledged this prima facie concern, recognising that such a composition could fundamentally alter the religious character of bodies established to administer Islamic charitable endowments.

In this regard, the Court has directed that non-Muslim members cannot exceed four in the Central Waqf Council and three in any State Waqf Board.

This judicial cap ensures that Muslim members will retain a robust majority with regard to the management of Waqf, thereby preserving the core religious identity and operational independence of these bodies. This intervention effectively minimises external interference and upholds the principle that the administration of Waqfs, a quintessentially religious function, must remain predominantly under the control of the Muslim community.

Furthermore, the court was silent on the appointment of a non-Muslim CEO and did not stay the same. But, crucially, it softened this ruling with a strong recommendation that state governments should, "as far as possible," appoint a Muslim officer to the post.

This creates a powerful expectation and moral imperative for the executive to respect the community's sentiments, even in the absence of a strict legal bar.

In conclusion, through these calibrated measures—imposing strict numerical limits on non-member composition and issuing a persuasive guideline for the CEO appointment—the Supreme Court has skilfully balanced the state's purported secular administrative interests with the fundamental right of the Muslim minority to administer its own religious endowments without undue interference.

The order stands as a bulwark against the dilution of the boards' religious character while the constitutional challenges are pending final adjudication.

Waqf by User

Another contentious provision was Section (ix) (b) of the Act, which was related to the deletion of the clause concerning ‘Waqf-by-User’ ie clause (i) of Section 3(r) of the original Waqf Act.

Section 3(r)(i) of the original Waqf Act defined a "Waqf" as a permanent dedication of property by any person for purposes recognised as pious, religious, or charitable under Muslim law. It specifically included a "Waqf by user," clarifying that such a Waqf would not cease to exist solely due to discontinued use, regardless of the duration of cessation. The term "waqif" was defined as any person making such a dedication.

Based on the reasoning that the requirement for registering a waqf has been a consistent legislative intent for over a century, the Supreme Court found no arbitrariness in the amendment's deletion of "Waqf by user."

The Court emphasised that mutawallis had ample opportunity to register properties under the original Act, which did not mandate a deed, and that the legislature's prospective abolition of the concept was a valid response to documented instances of misuse, such as the encroachment on government lands.

Ultimately, the Court declined to stay this provision, holding that the state's power to curb misuse of Waqf properties by requiring formal registration and abolishing "Waqf by user" prospectively was a rational measure to prevent fraudulent claims. It held that the amendment's prospective application ensured that existing registered waqfs remained unaffected, addressing concerns of retrospective divestment while upholding the legislature's intent to protect public assets.

A Look at Section 3C

The Court noted that the process outlined in Section 3C of the Amended Waqf Act (which empowered a government-designated officer to unilaterally inquire into, determine, and de-recognise disputed Waqf properties as government land) is totally arbitrary. In doing so, the Court has specifically stayed the operation of Sections 3C(2)(proviso), 3C(3), and 3C(4) of the Act, noting that allowing a revenue/government officer to adjudicate title disputes violated the principle of separation of powers under the Constitution.

The provison, which automatically stripped a property of its Waqf status during the pendency of inquiry, was deemed particularly egregious, as it prejudged the outcome without judicial scrutiny.

However, the Court upheld the underlying intent of Section 3C(1) and 3C(2) (excluding the proviso), acknowledging the state’s legitimate interest in reclaiming wrongfully appropriated government properties. It emphasised that such disputes must be resolved by a judicial or quasi-judicial authority—specifically, the Waqf Tribunal (composed of a judicial officer, a senior bureaucrat, and a Muslim law expert) under Section 83, with appeals to the High Court. This ensures due process and protects the rights of all parties.

“Though we have prima facie upheld the provisions of Section 3C(1) and 3C(2) of the Amended Waqf Act, we find that the question with regard to determination of title of a property being entrusted to a revenue officer would not be in tune with the principle of separation of powers enshrined in our Constitution. The question of determination of the title of a property will have to, in our considered opinion, be resolved by a judicial or quasi-judicial authority.”

Supreme Court of India

To balance equities, the Court directed that no third-party rights be created on disputed properties during the pendency of proceedings before the Tribunal. This interim measure prevents alienation of contested assets while safeguarding both government interests and the rights of Waqfs until a final judicial determination is made.

Interim Win, Long Road Ahead

While the Supreme Court was careful to clarify that its observations are prima facie and the final validity of the Act is yet to be determined, the interim order undeniably represents a major victory for the petitioners.

By staying the procedurally absurd five-year practice requirement and curtailing the executive's power to unilaterally de-recognise Waqf land, the Court has effectively neutralised the most immediate threats posed by the arbitrary amendments. The directives capping non-Muslim memberships further ensure the community's predominant role in managing its own religious endowments during this interim period.

Ultimately, the lasting impact of this order may extend beyond the immediate stays.

It sends a powerful message that legislative changes, especially those affecting minority institutions, must be carried out with utmost care, procedural fairness, and respect for the doctrine of separation of powers. 

The fact that certain provisions have been stayed indicates that there is hope that if there are legislations which are directly attacking the core fundamental values enriched under Part 3 of the Indian Constitution, then they cannot pass through which a ‘judicial scrutiny’. Although the order is interim in nature, it sends a long-lasting message, like the Places of Worship Act, 1991.

(Areeb Uddin Ahmed is an advocate practising at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)