When former Chief Justice of India Sanjiv Khanna first heard the challenge to the Waqf Amendment Act 2025 on April 16-17, he proposed interim restrictions on its contentious features that were agitating sections of the Muslim society. But the Centre dodged the bullet by buying more time to argue its case. One of the restrictions Justice Khanna proposed was that properties declared by a court as waqf would not be denotified or treated as non-waqf, whether or not it is ‘waqf by user’. Second, findings by Collectors on the legality of waqf properties would not be acted upon till the disposal of the case. And finally, a few ex officio members can be appointed to waqf boards and councils, but all other members must be Muslims. With Justice Khanna retiring midway, the matter went to a new bench headed by present Chief Justice B R Gavai, whose interim verdict refused to stay the law but paused a few of its sections.
While Justice Khanna intended to protect the concept of ‘waqf by user’ at least partially, the interim verdict upheld the provision to axe ‘waqf by user’ prospectively. It also found the requirement of registration of all ‘waqf by user’ properties valid, pointing out that the provision was made mandatory in the 1923 Waqf Act itself. On the question of empowering the Collector to quash the waqf status of a property if he determines it illegal, the bench suspended the provision, saying officers cannot be judges in their own case; the adjudication has to be judicial or quasi-judicial. As for the appointment of non-Muslims to state waqf boards and the central waqf council, the bench left the door ajar with a cap on induction. Another clause vehemently opposed by the petitioners was the prescription of five years as a practising Muslim for eligibility to create a waqf. The bench did not see it as arbitrary, but hit the pause button since rules to identify a practising Muslim are yet to be framed.
A waqf is an endowment made by a Muslim individual for charity or religious purposes and is irreversible. Rampant mismanagement necessitated their regulation since 1923. Given that the interim verdict is a mixed bag, triumphalism from any quarter would be out of place. With the truncated law kicking in soon, its fallout will be keenly watched.