New Delhi: The Supreme Court on Monday put on hold a few key provisions of the Waqf (Amendment) Act, 2025, including a clause that only those practising Islam for the last five years could create Waqf, but refused to stay the entire law outlining the presumption of constitutionality in its favour.
“Presumption is always in favour of constitutionality of a statute and intervention (can be done) only in the rarest of rare cases,” a bench of Chief Justice B R Gavai and Justice Augustine George Masih said in its 128-page interim order on the contentious issue.
The bench went on, “We do not find that any case is made to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected.”
However, in order to “protect the interest of parties” and “balancing the equities”, the order stayed some provisions including the powers accorded to a collector to adjudicate the status of waqf properties and ruled on the issue of non-Muslim participation in Waqf Boards.
The bench, therefore, directed the Central Waqf Council not to have more than four non-Muslim members in the total composition of 20 besides asking state waqf boards to have not more than three such members in the total of 11.
“The following part of clause (r) of Section 3 of the Amended Waqf Act ‘any person showing or demonstrating that he is professing Islam for at least five years’ shall stand stayed until the rules are framed by the State Government for providing a mechanism for determining the question as to whether a person has been practicing Islam for at least five years or not,” the top court held.
The top court further stayed a provision which said a property should not be treated as “waqf property till the designated officer submits his report”.
In addition, another provision stating, in case the designated officer determines the property to be a government property, he should make necessary corrections in revenue records and submit a report to the state government, was also stayed.
“Unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the tribunal and subject to further orders by the high court, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the board shall be affected,” it held.
Till the final determination about the title of a disputed property by the tribunal and subject to further orders of the high court in an appeal, the bench held, no third-party rights would be created.
It, however, did not stay Section 23 (appointment of chief executive officer and his term of office and other conditions of service) of the amended law, but directed the authorities “as far as possible” an effort should be made to appoint the chief executive officer of the board who is the ex-officio secretary from the Muslim community.
The bench clarified its directions were prima facie and interim in nature, and would not prevent the petitioners or the government from advancing full arguments on the constitutional validity of the law during the final hearing.
According to the Act, Waqf refers to an endowment made by a Muslim for charitable or religious purposes, such as building mosques, schools, hospitals, or other public institutions.
“Another defining feature of a Waqf is that it’s inalienable- which means it cannot be sold, gifted, inherited or encumbered,” it said.
On the issue of the law’s validity, the bench referred to precedents and said, “Courts should be very slow in granting interim relief by way of staying the provisions of an enactment. Interim relief of such a nature can be granted in rare and exceptional cases…”
The verdict underlined courts’ acceptance of the legal position of presumption always being in favour of constitutionality of an enactment and the burden being on the person who “attacks it” to show a clear transgression of the constitutional principles.
The order referred to legislative history since 1923 when the Mussalman Wakf Act of 1923 was enacted.
“Since the menace of mismanagement of the wakf properties was noticed by legislature, an enactment was found to be necessary as early as in the year 1923,” it said.
While it did not find fault with the provision requiring a person practising Islam for five years to create a waqf, saying it cannot be called arbitrary, the bench held, “Since no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practising Islam for at least five years or not, such a provision cannot be given effect to immediately,” it said.
On registration of waqf, it said if mutawallis (caretaker of waqf) have chosen not to get it registered for 30 long years, then they couldn’t be heard to say the provision which now required the application to be accompanied by a copy of the waqf deed was arbitrary.
