SC backs 5-year rule for creating Waqf but stays implementation pending norms
The bench rejected the petitioners’ arguments that the condition was arbitrary or discriminatory, holding instead that it had a rational nexus with preventing misuse of the waqf framework.
The Supreme Court on Monday found favour with the constitutional validity of the provision in the Waqf Amendment Act, 2025 requiring a person to have practised Islam for at least five years before creating a valid waqf, even as it opted to stay its implementation until the Centre and states frame a proper mechanism to verify compliance.
The bench led by Chief Justice of India Bhushan R Gavai rejected petitioners’ arguments that the condition was arbitrary or discriminatory, holding instead that it had a rational nexus with preventing misuse of the waqf framework.
“Prima facie, we are of the view that such a provision cannot be said to be arbitrary or discriminatory,” held the bench, underlining that even in 1923, the legislature had recorded concerns that waqf endowments were being used as a “clever device” to defeat creditors and evade legal obligations.
“The possibility of any person not belonging to the Muslim community converting to the Islamic religion only in order to take benefit of the protection of the Waqf Act so as to defeat creditors and evade the law under the cloak of a plausible dedication cannot be ruled out,” reasoned the bench.
It added that the provision -- which was enacted with a view to ensure that only persons who are genuinely professing Islamic religion and have not converted themselves to Islam only in order to evade the clutches of law -- cannot be said to be arbitrary.
“We are, therefore, prima facie of the view that such a provision which requires a person practising Islam for five years for creating a waqf cannot be said to be arbitrary. As already discussed hereinabove, it cannot be said that it has no nexus with the object sought to be achieved,” it said.
At the same time, the court pointed out that no procedure currently exists for determining whether a person has been practising Islam for five years. Until such rules are notified by the central government under the Act, it declared, the provision cannot be enforced.
The bench also upheld as valid the related requirement that only property owned by the person creating the waqf can be dedicated, noting that both classical Islamic jurisprudence and principles of charity require one to donate one’s own property, not that of others.
