New Delhi, Sep 15 The Supreme Court on Monday declined to order a blanket stay the operation of the Waqf (Amendment) Act, 2025, while granting limited interim relief in respect of certain contentious provisions.
A Bench headed by Chief Justice of India (CJI) B.R. Gavai observed that courts must exercise restraint when asked to stay laws enacted by Parliament.
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"In the totality of the circumstances, we do not find that any case is made out to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected,” the apex court said, rejecting the prayer for blanket stay on implementation of the act.
At the same time, the CJI Gavai-led Bench issued certain protective directions and stayed the requirement that only a person "professing Islam for at least five years" can create a waqf, until rules are framed for its implementation.
"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 apex court said.
Similarly, provisions empowering designated officers to treat disputed properties as government land pending verification have also been put on hold.
"Upon commencement of an inquiry under Section 3C of the amended Waqf Act till the final determination by the Tribunal under Section 83 of the amended Waqf Act, subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties," the bench ordered.
It further directed that the Central Waqf Council — constituted under Section 9 of the amended Waqf Act — should not consist of more than 4 non-Muslim members out of 22. "Insofar as the (State Waqf) Board constituted under Section 14 of the amended Waqf Act is concerned, it is directed that it shall not consist of more than 3 non-Muslim members out of 11," added the top court.
Though it declined to stay the provision of Section 23 of the amended Waqf Act, the CJI Gavai-led Bench directed that "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 amongst the Muslim community".
On the controversial deletion of waqf-by-user, the apex court refrained from granting an immediate intervention, saying: "If Mutawallis (custodians) for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered."
It observed that the Mutawallis who failed to apply for registration of waqf properties for three decades cannot now argue that the legal requirement of submitting a copy of the waqf deed is arbitrary.
"If the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the impugned Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary," the CJI Gavai-led bench said. "Not only that, but we are also of the view that if the legislature, in 2025, finds that on account of the concept of 'Waqf by User', huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary," it added.
The Supreme Court declined to stay Section 3D of the amended Waqf Act, which renders void any declaration of protected monuments or areas as waqf, noting that the provision was enacted after the Archaeological Survey of India (ASI) highlighted difficulties in preserving monuments due to overlapping claims by mutawallis. Dismissing arguments that Section 3D deprived Muslims of religious practices, the apex court observed that Section 5(6) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, permits customary religious practices even if such an area is a protected monument.
Further, the apex court prima facie opined that Section 3E of the amended Waqf Act, which prohibits declaring land in Scheduled or Tribal areas as waqf property, is not arbitrary and has a clear nexus with its objective.
"We are of the considered view that a provision such as Section 3E of the amended Waqf Act, which has been enacted with the avowed object of safeguarding the interest of one of the most marginalised and vulnerable sections of our country, i.e., the Scheduled Tribes cannot be said to have no nexus with the object sought to be achieved," the bench observed.
The apex court clarified that its observations were made on a prima facie basis for the limited purpose of examining whether an interim stay should be granted.
"The observations made…will not prevent the parties from making submissions with regard to the validity of the provisions contained in the amended Waqf Act or any of the provision(s) therein," it added.
The decision appears to be a setback for petitioners challenging the Waqf (Amendment) Act, 2025, as violative of Articles 14, 15, 25, 26, 29, and 30 of the Constitution. The petitioners' side had argued that the amendments were an attempt to expropriate waqf properties, saying "though the impugned Act says that it has been enacted to ‘protect’ Waqfs, the real intention behind it is to take away or expropriate the Waqf properties".
The Supreme Court heard the petitioners’ and the Centre’s views over three hearings before reserving its order on issuing a stay on the Waqf (Amendment) Act, 2025 — a law vehemently defended by the Union government as a tool to curb misuse of Waqf properties and ensure greater transparency in their management.
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