IN RE THE WAQF (AMENDMENT)w ACT, 2025 (1)|W.P.(C) No. 276/2025
The Supreme Court today stayed certain provisions of the Waqf (Amendment) Act 2025.
A bench comprising Chief Justice of India BR Gavai and Justice AG Masih interfered with the following provisions .
1. The provision in Section 3(1)(r) that a person should be a practitioner of Islam for 5 years to create a Waqf has been stayed till State Governments frame rules for providing mechanism to determine the question whether a person has been practising Islam for 5 years or more. Without such a mechanism, the privison will lead to an "arbitrary exercise of power," the Court observed.
2. The proviso to sub-section 2 of Section 3C, allowing the designated officer of the Government to decide the dispute whether a Waqf property has encroached upon a Government property has been stayed, observing that an Executive Officer cannot be permitted to adjudicate the rights of personal citizens and this will violate the separation of powers. However, till adjudication happens by the Tribunal, no third party rights can be created against any parties.
3. The provision allowing the nomination of non-Muslim members to the Waqf Boards has not been stayed. However, the Court observed that, as far as possible, the Ex-officio member of the Board, should be a Muslim person. The Court observed that for the Central Waqf Councul, it shall not consist of more than 4 non-muslim members, and for State Waqf Board, not more than 3 non-Muslim members.
The Court did not interfere with the provision mandating registration, saying that it is not a new requirement, as this condition was there in the previous enactments of 1995 and 2013 as well. However, the Court has extended the timelines for registration (which will be known once the judgment is uploaded.)
The Court had reserved the order on May 22 after hearing the parties over three days. The petitions are filed challenging the constitutionality of the sweeping changes made to the Waqf law by the amendments passed by the Parliament in 2025.
In April, after a bench led by former CJI Sanjiv Khanna expressed some prima facie reservations about some of the provisions, the Union undertook that non-Muslims would not be appointed to the State Waqf Boards and the Central Waqf Councils during the pendency of the matter. The Centre also agreed that no Waqf, including a Waqf by user, whether declared by way of notification or by way of registration, shall be de-notified, nor will their character or status be changed.
AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani,Samastha Kerala Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, TMC MP Mahua Moitra, Indian Union Muslim League, All India Muslim Personal Law Board, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, Communist Party of India, DMK etc., are some of the petitioners.
Intervention applications have been filed by five BJP-led States: Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra, supporting the legislation. Recently, the State of Kerala has also filed an intervention supporting the 2025 Amendment.
Common provisions challenged in all petitions
Omission of 'waqf by user' provision, inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board, pre-condition of 5 years as practising Muslim for create of waqf, allowing Government to decide disputes regarding encroachment of government property, application of Limitation Act to Waqf Act, invalidating Waqf created over ASI protected monuments, restrictions on creating Waqfs over scheduled areas, limiting the inclusion of women members to two in the Council and Boards, diluting waqf-alal-aulad, renaming 'Waqf Act, 1995 to "Unifed Waqf Management, Empowerment, Efficiency and Development," providing appeal against the Tribunal's order etc., are some of the provisons under challenge.
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