September 16, 2025
NEW DELHI – The Supreme Court on Monday declined to stay the Waqf (Amendment) Act, 2025 in its entirety, but put on hold certain specific provisions that it felt could lead to arbitrary exercise of power by the government, and are in violation of the principles of separation of power enshrined in the Constitution, with the executive taking upon its self-adjudicatory role which is otherwise reserved for a judicial or quasi-judicial authority.
The court sad that there was a presumption of constitutionality in the favour of a statute and the interim relief of staying an enactment can be granted in “rare and exceptional cases” that too where petitioners challenging the law can demonstrate that either the legislature which enacted the law lacks legislative competence or the provisions are ex-facie in violation of the fundamental rights, or constitutional principles or is manifestly arbitrary.
A bench of Chief Justice B.R. Gavai and Justice Augustine George Masih, by an interim order, stayed the operation of two key provisions while upholding the requirement of the registration of Waqfs and the presence of non-Muslims on the Central Waqf Council and the State Waqf Boards.
Among the key clauses put on ice is the requirement that an individual must have practised Islam for at least five years before being eligible to create a waqf. The bench noted that the absence of any rule-making framework to verify such a condition leaves the provision open to arbitrary state action. It therefore suspended the operation of this clause until the central governments frame appropriate rules.
Another major provision that concerns the authority granted to the designated revenue officials to decide if land claimed as waqf is in fact government property. Under Section 3C(2) of the amended Act, state governments could designate officers above the rank of Collector to conduct inquiries, amend revenue records, submit reports to the State government which in turn will direct the waqf boards to make corrections in their records.
The Court held this arrangement to be prima facie inconsistent with the principles of separation of powers, saying title disputes must be determined by judicial tribunals, not executive officers.
The bench clarified that disputes about ownership of properties claimed as waqf will instead be adjudicated by tribunals under Section 83. Until such proceedings, including appeals before High Courts, reach finality, neither waqf institutions will be dispossessed of land nor will any third-party rights be created.
On the composition of the Central Waqf Council and the waqf boards, the Court left intact the provisions permitting non-Muslim members. It directed that the Central Council should not have more than four non-Muslims out of 22 members, while state boards should not exceed three non-Muslims in their 11-member strength.
The Court did not invalidate Section 23, which provides for the appointment of the Chief Executive Officer of the Board, but directed that, as far as possible, the CEO should be chosen from within the Muslim community since the officer also functions as ex officio secretary to the board.
Dealing with registration of waqfs, the bench noted that requirements for filing Waqf deeds have existed since the Mussalman Waqf Act of 1923 and subsequent enactments. Mandating a copy of the waqf deed with applications for registration under the new law, particularly in light of misuse of waqf properties, was not found arbitto be rary.
The Waqf (Amendment) Act, 2025, has been challenged by Mohammad Jawed (Congress MP), Asaduddin Owaisi (AIMIM MP), Maulana Arshad Madani (Jamiat Ulema-i-Hind), All India Muslim Personal Law Board (AIMPLB), Samastha Kerala Jamiatul Ulama, Social Democratic Party of India (SDPI), and Association for Protection of Civil Rights (APCR).
They argued that the amendments amount to targeted interference in Muslim religious affairs and violate constitutional protections.
Six BJP-ruled States—Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh, and Assam—have filed intervention applications supporting the amendment. They claim it is essential to curb fraudulent encroachments on public and private lands wrongly claimed as waqf.
Defending the amended law, the Centre had said that the 2013 Waqf Act amendments led to a many fold increase in recorded waqf area, and the 2025 amendment merely regulates waqf dedications by setting formal and transparent mechanisms.