The Supreme Court of India on Monday (September 15, 2025) declined to stay the entire Waqf (Amendment) Act, 2025, noting that presumption is always in favour of the constitutionality of a law passed by the legislature.
“It is only in the rarest of rare cases, the court can grant stay of the law challenged. We have found that the case was not made out to stay the entire statute,” a Bench of Chief Justice of India B.R. Gavai and Augustine George Masih observed.
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However, certain amendments to the provisions of the waqf law were stayed. These include Sections 3, 9, 14, 23, 36, 104, 107 and 108 after prima facie considering the question of their legality and the history of the legislation dating back to 1923.
The Court made it clear that its refusal to stay the entire statute and observations made in the judgment would not impair the rights of the parties to further pose a comprehensive challenge against the entire 2025 Amendment Act and all its provisions.
Meanwhile, the Court has stayed Section 3 which had required a person intending to create a waqf to prove that he had been practising Islam for at least five years.
The Court said until a “mechanism” or “rules” are devised by the Centre to prove that a person has been a Muslim for five years, the amendment would be stayed.
“It is held that without a mechanism, such a provision would lead to an arbitrary exercise of power,” Chief Justice Gavai underscored.
The Court also froze the implementation of the proviso in Clause 2 of 3C, which mandated that a waqf property under dispute and subject to an enquiry by a designated officer of the government, would lose its status and character of a waqf asset until the official submitted a report.
The petitioners had submitted Section 3C had allowed free rein to any encroacher to start a dispute about the authenticity of a waqf and freeze its status as a waqf.
The Court said permitting a government officer like the district Collector to determine the rights of a waqf or citizens who are stakeholders in the waqf would be alien to the doctrine of separation of powers.
“The Executive cannot be permitted to determine the rights of citizens in proceedings,” Chief Justice Gavai said during the pronouncement.
The court emphasised that there would be no change in the status or position of the waqf property under enquiry until the findings of the designated officers reached finality.
The judgment said until the issue of the title of waqf property was determined by a competent tribunal and subject to further proceedings by the High Court concerned, the waqfs would neither be dispossessed of the property nor would there be any change made in the revenue or court records. No third party rights would also be created in the interim of a pending title dispute.
The court held that Muslims would be the majority members of crucial waqf bodies such as the Central Waqf Council and the Waqf Boards across States. The Central Waqf Council, under Section 9, would not have more than four non-Muslim members out of a total 20.
“Equally, in Waqf Boards, under Section 14, the number of non-Muslims would not be more than three. Utmost efforts would be made by States to ensure that the Chief Executive Officers of waqf boards, under Section 23, must belong to the Muslim community,” the court directed.
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Petitioners had raised alarm about the “subordination” of Muslim members in waqf administrative bodies by including non-Muslims in them. Senior advocates Kapil Sibal and AM Singhvi had argued that no other religious endowments, Hindu or Sikh, allowed room to members of other faiths to run their temples or gurudwaras.
The Court’s judgment however did not prima facie favour petitioners’ arguments against the mandatory registration of waqfs by the authorities.Chief Justice Gavai noted that registration had been made mandatory since 1995 and continued till 2013, after which it was abandoned. Besides, unregistered waqfs could still go and get themselves registered.
The petitioners had described the mandatory requirement to register waqfs as a “creeping acquisition” of Muslim properties by the government. They had further argued that the 2025 Amendment Act would effectively invalidate unregistered waqf–by-users. Many of the age-old waqfs had no documents or deeds to support their identity.
They had argued that the law placed “arbitrary restrictions on waqf properties and their management, thereby undermining the religious autonomy of the Muslim community.” They had contended the waqf amendment law undermined property rights protected under Article 300A of the Constitution and encroached on a minority community’s right of freedom of religion (Article 25).
The Centre, represented by Solicitor General Tushar Mehta, on the other hand, had defended registration as a necessary counter to “rampant encroachment” on public and private properties.
Mr. Mehta had submitted that waqfs by user were only given statutory recognition by preceding Waqf Acts. “What was created by a legislative policy could be taken away by legislative action considering the societal situation,” he had noted.
The Union Government had defended the constitutionality of the waqf amendments, noting that practice of charity through creation of waqfs was not an essential part of Islam.
The government had countered the petitioners, saying Articles 25 and 26 (minorities’ right to manage their religious affairs) permitted State regulation of secular activities related to religion, including financial management and property administration of religious endowments to ensure transparency.
Published – September 15, 2025 12:41 pm IST
