Supreme Court declines to stay Waqf Act but halts key clauses

The Supreme Court observed that adopting the law in full, without safeguards, could lead to “serious consequences” for property rights

The Supreme Court on Monday refused to suspend the Waqf (Amendment) Act, 2025, in its entirety but put on hold some contentious provisions pending further judicial scrutiny, marking an important development in the ongoing debate around the regulation of Islamic charitable endowments.

The court also emphasised that lands belonging to scheduled tribes, or those notified as protected monuments under central or state laws, could not be declared as waqf properties. (ANI FIle)

Among those suspended are the provisions empowering collectors to unilaterally determine whether a property claimed as waqf belongs to the government, and the stipulation that only a lawful property owner who has been practising Islam for at least five years may create waqf through a formal deed. The court clarified that the requirement of being a practising Muslim for five years would take effect only after Centre and state governments frame rules for determining such adherence.

Waqf, in Islamic law, refers to a charitable endowment where an individual dedicates property for religious or philanthropic purposes, with the benefits accruing to a specified group or for a public good. Notified in April, the 2025 law amends the 1995 Waqf Act, and has been touted by the government as a comprehensive overhaul aimed at improving the administration and management of waqf properties. However, several Muslim organisations and Opposition parties, including the Rashtriya Janata Dal, Samajwadi Party and All India Majlis-e-Ittehadul Muslimeen, criticised the amendments, accusing the Centre of encroaching on the community’s religious rights and argued that the changes could undermine the autonomy of waqf institutions and infringe on religious freedoms.

Delivering its interim order on a batch of petitions assailing the law, the most significant restraint imposed by the court concerned the new powers vested in collectors. Under the amended law, collectors were authorised to decide the nature of a property and to make reports for altering revenue records to reflect whether it is waqf or government land. The bench suspended this provision, terming the provision “prima facie arbitrary”, and added that such determinations must be left to judicial or quasi-judicial bodies.

“Any such determination will remain subject to adjudication by waqf tribunals and the concerned high courts,” held the court. Until the proceedings before waqf tribunals are concluded, it directed, no third-party rights shall be created by mutawallis or custodians of such waqfs in the properties concerned.

The court also emphasised that lands belonging to scheduled tribes, or those notified as protected monuments under central or state laws, could not be declared as waqf properties. This, it said, was necessary to protect both constitutional safeguards for tribals and statutory protections for heritage sites. Furthermore, it noted that the Ancient Monuments and Archaeological Sites and Remains Act, 1958, permits the citizens to continue with their customary religious practices even if such an area is a protected monument.

Another area of contention addressed by the court was the composition of waqf councils and boards. The amended act permits non-Muslims to be nominated as members. The court, however, ruled that such participation must remain limited. It directed that the Central Waqf Council-- a national advisory body under the Union ministry of minority affairs chaired ex officio by the Union minister, should not have more than four non-Muslim members. Similarly, state waqf boards, it said, should not have more than three non-Muslim members.

Further, while the amended act does not expressly require that chief executive officers (CEOs) of state waqf boards be Muslims, the bench suggested that they should preferably belong to the community. This, the court said, was in keeping with the religious character of waqf institutions, though it stopped short of imposing a mandatory rule.

The bench also affirmed the Centre’s decision to delete provision relating to the application of the act to properties given or donated by persons not professing Islam for support of certain waqfs, underlining that even according to petitioners, waqf is specific to Islamic religion and that the rationale behind the provision seemed to be align it with the requirement of only a practising Muslim creating a waqf.

Delivering the judgment on a bunch of two dozen petitions that had demanded a complete stay of the legislation, the bench underscored the principle that legislation is always presumed to be constitutional. Courts, he WHO? CJI? noted, must be cautious in suspending statutory provisions, and should do so only where prima facie violations are apparent.

In its 128-page judgment, the bench appeared to chose a middle path, allowing most of the act to operate, while suspending those parts that could irreparably alter property rights or dilute minority protections. The court made it clear that these were interim directions, pending final adjudication of the constitutional challenges to the law.

Senior advocates Kapil Sibal, Rajeev Dhavan, Abhishek Manu Singhvi, CU Singh and Huzefa Ahmadi appeared for the petitioners, as they contended that restricting the right to create waqf only to Muslims who had practised for at least five years was arbitrary and unconstitutional. The five-year requirement, they argued, had no rational nexus with the purpose of waqf and unjustly curtailed religious freedom under Article 25 of the Constitution. They further challenged the empowerment of collectors to decide disputes over waqf properties, pointing out that these were civil disputes which could only be adjudicated by tribunals and courts. Another plank of the petitioners’ challenge was the inclusion of non-Muslims in waqf councils and boards. Permitting non-Muslim members, they said, violated the right of minorities to manage their own institutions under Article 30.

The Union government, defending the amendments through solicitor general Tushar Mehta, argued that the reforms were intended to bring greater transparency, accountability, and efficiency in the management of waqf properties, which constitute one of the largest holdings of charitable land in the country. It maintained that centralised registration of properties would prevent encroachment and loss of records, while empowering collectors to make initial determinations would ease the burden on tribunals and courts. The inclusion of non-Muslim members, the government said, was consistent with broader principles of inclusivity and was intended to ensure checks and balances. On the five-year requirement for creating waqf, the Centre argued that it was meant to prevent misuse by individuals with tenuous or opportunistic claims of conversion.

The contentious amendments to the central waqf law, which aims to make sweeping changes in the regulation and management of Islamic charitable endowments, was cleared by Parliament in April.

The top court’s order drew sharp political responses, with the BJP calling it a reaffirmation of Parliament’s authority and the Opposition saying it’s a vindication of their stand against the act.

Congress general secretary Jairam Ramesh called the order a victory for those who opposed the law in Parliament. “The SC’s order is a victory not just for the parties that opposed the act in Parliament, but also for those members of the JPC who submitted detailed dissent notes,” he said.