NEW DELHI: The Supreme Court, on Monday, refused to stay the entire Waqf Amendment Act, 2025 amid ongoing petitions challenging the law. The court however stalled certain provisions of the Act, including the condition that a person should be a practitioner of Islam for at least five years for dedicating property to waqf.
It also observed that while the SC is not issuing directions, it would be appropriate for the Centre to limit non-Muslim nominations to no more than three in the 11-member Central Waqf Council.
The bench directed that the Central Waqf Council should not have more than 4 non-muslim members and not more than 3 in State Waqf Boards
The court, while refusing to stay the amendment permitting the appointment of a non-Muslim as CEO, clarfied that as far as possible, the Chief Executive Officer of the Waqf Board should be a Muslim.
The apex court, in its order, said that laws enacted by Parliament must be presumed valid and that a stay should be granted only in the rarest of rare cases. However, it added that the determination of waqf by user by a government official would be subject to the orders of jurisdictional High Courts.
"We have considered the prima facie challenge to each of the sections. We have found that no case was made out to stay the entire provisions of the statute. However, some sections need some protection," said the top court in its order.
The bench passed the order staying sections 3(r), 2(c) proviso, 3(c) and 23 on the following grounds:
Section 3(r) need 5 years as practising Islam stands failed until rules are formed, it would lead to arbitrary exercise of powers.
Section 2(c) proviso- waqf property shall not be treated as waqf property.
The court also stayed the provision that gave a Collector the power to decide if a property declared as Waqf belonged to the government, stressing that letting the Collector rule on citizens’ rights would violate the separation of powers.
"Section 23- Ex-officio officer must be from Muslim community as far as possible," it said.
The bench of the apex court -- which had reserved the order on May 22 -- pronounced the decision on Monday.
A batch of petitions challenging the Consitutional validity of the Act was filed before the apex court, contending that it was discriminatory towards the Muslim community and violates their fundamental rights.
President Droupadi Murmu on April 5 gave her assent to the Waqf (Amendment) Bill, 2025, which was earlier passed by Parliament after heated debates in both Houses -- Lok Sabha and Rajya Sabha.
During the hearing in May, the Union of India (UOI), through its senior law officer Solicitor General (SG) Tushar Mehta, had submitted to the apex court that the waqf management had misused monuments, giving rooms for shops and making unauthorised alterations.
The submission of Mehta was vehemently opposed by senior lawyer Kapil Sibal, appearing for some petitioners. He had argued that there are other laws which deal with such issues. "You cannot take my right over the waqf property because of these issues,” Sibal had stated.
The Centre, while strongly defending the Amendment Act, submitted that there was no ground for staying a “validly enacted statute” by the competent legislature. “The very fact that the court has to hear the batch of pleas for interim stay for three days, shows there is nothing ex-facie unconstitutional with the law. Mere legal arguments are insufficient to stay the statute. There is no ground for staying a validly enacted statute by the competent legislature," Mehta argued before the top court.
He had submitted that creating a waqf is different from donating to a waqf, which is why there is a five years practice requirement for Muslims so that waqf is not used for defrauding someone. "Suppose I am a Hindu and I want to donate to a waqf, it can be done. How can a non-Muslim be allowed to create a waqf. He can always donate to a waqf," said Mehta.
Delving into the batch of pleas that these were filed without any proper materials to support, Mehta had argued that three days of hearings had revealed no ex-facie evidence of unconstitutionality. He said that mere legal propositions or hypothetical arguments do not justify halting the operation of a law duly enacted by Parliament.
On the other hand, Sibal -- opposing these submissions of Mehta -- had asked if waqfs used for religious purposes can be stripped of the status, merely for being unregistered. "Can the government for its own fault of not conducting surveys now claim waqf properties as government land by a legislative fiat," Sibal had questioned.
Senior lawyer Rakesh Dwivedi, appearing for the state of Rajasthan, supported the 2025 Act. He said that ‘waqf by user’ is not a core practice of Islam, as it did not involve any formal dedication. It was merely a way of holding land as waqf through adverse possession.
Senior advocate Ranjeet Kumar, appearing for the Haryana government and a tribal organisation supporting the 2025 Amendments, said in Rajasthan, a waqf claim was made over a 500-acre land given for mining purposes.
Mehta had said that the dedication of land as waqf is permanent and irreversible. Therefore, land belonging to members of Scheduled Tribes (STs) cannot be dedicated as waqf.
"The state restricts the alienation of tribal land to protect tribal communities. Otherwise, anyone could become a mutawalli (Manager of Waqf property) and misuse the waqf to their detriment," the Centre's law officer had contended.
Mehta further had argued that Muslim tribals are being victimised. “There may be differing points of view,” he says, “but that cannot be a ground to stay the operation of a duly enacted law.”
The apex court was hearing five petitions -- out of more than 100 -- after noting that it was impossible to hear all the pleas in the matter, as more or less, the prayers were strikingly similar.
The Centre on April 25 had defended the Waqf Amendment Act, 2025, as a valid, lawful exercise of legislative power. While filing a detailed reply in the Supreme Court, the Union had requested it to dismiss the batch of petitions challenging the constitutional validity of it.
"It is a settled position in law that the constitutional courts would not stay a statutory provision, either directly or indirectly, and will decide the matter finally," said the Centre, in its reply filed before the top court.
The UOI filed the reply after complying with the top court's order asking it to file the same before it.
The Centre said that shockingly after 2013, there was an addition of over 20 lakh hectares (precisely 20,92,072.536) in Waqf land. "Right before even Mughal era, pre-independence era and post-independence era, the total of waqfs created was 18,29,163.896 acres of land in India," said the Centre, through its affidavit filed in the top court.
"For the last 100 years, waqf by user is recognised only upon registration and not by word of mouth. Hence, the amendment was in sync with consistent practice. There will be maximum of two non-Muslims among 22 members in the Waqf Council and Aukaf Boards, a measure that is representative of inclusiveness and not intrusive of the administration of waqfs," the Centre said.
The affidavit added that the identification of government land deliberately or wrongly mentioned as waqf properties is to set the revenue records right and that such land cannot be treated as land belonging to any religious community.
The Centre, in its 1,332-page counter affidavit, submitted that there cannot be a "blanket stay" on the law as there was a "presumption of its constitutionality".
The Centre had submitted that the law was not violative of the fundamental rights guaranteed under the Constitution. "The amendments are only for the regulation of the secular aspect regarding the management of the properties and hence, there was no violation of the religious freedoms guaranteed under Articles 25 and 26 of the Constitution," it had said.