Apex court stays some Waqf clauses, refuses to stall law

The Supreme Court on Monday ruled that no case is made out to stay all provisions of the recently passed Waqf Amendment Act, 2025. A bench comprising Chief Justice of India (CJI) BR Gavai and justice Augustine George Masih rejected the demand to stay the entire statute.

However, it stayed certain provisions of the amendment act "in order to protect the interest of all the parties and balance the equities during pendency of this batch of matters".

The court ordered that clause (r) of Section 3 of the Amended Waqf Act, which stipulates that "any person showing or demonstrating that he is professing Islam for at least five years", shall stand stayed "until 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".

It also stayed the proviso to sub-section (2) of Section 3C of the Act, which reads "provided that such property shall not be treated as waqf property till the designated officer submits his report". And also the provisions of the amended act which read "in case the designated officer determines the property to be a government property, he shall make necessary corrections in revenue records and submit a report in this regard to the state government. The state government shall, on receipt of the report of the designated officer, direct the board to make appropriate correction in the records" have been stayed.

SC directed that "unless the issue with regard to title of the waqf property in terms of Section 3C of the Act is not finally decided in the proceedings initiated 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". However, the order reads: "Upon commencement of an inquiry till the final determination by the tribunal, subject to further orders of the high court in an appeal, no third-party rights would be created in respect of such properties".

Flagging the sweeping powers granted to a district collector in the new amended act, the bench held, "The collector cannot be permitted to adjudicate the rights of personal citizens, and this will violate the separation of powers. Till adjudication happens by the tribunal, no third-party rights can be created against any party. The provision dealing with such powers to the collector shall remain stayed." The amended act had empowered the district collector as the final arbiter in issues related to Waqf property ownership.

The court further directed that insofar as the Central Waqf Council is concerned, it shall not consist of more than four non-Muslim members out of 22. "Equally, insofar as the board constituted under the act is concerned, it is directed that it shall not consist of more than 3 non-Muslim members out of 11," the order reads.

SC said though it is not inclined to stay the provision of Section 23 of the Act, "we direct that as far as possible, an effort should be made to appoint chief executive officer of the board who is the ex-officio secretary from amongst the Muslim community".

The court clarified that what has been observed by the bench is its "prima facie consideration for the purpose of examining as to whether an interim stay should be granted or not to the impugned act or the provision(s) contained therein".

The bench also made it clear that the observations made by it in the order "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".

SC also held that the deletion of 'waqf by user' from the earlier law is not arbitrary. The bench ruled 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".