Supreme Court Refuses To Stay Waqf Amendment Act, Suspends Key Provisions

The Supreme Court on Monday declined to stay the Waqf (Amendment) Act, 2025 in its entirety, stating that such a stay can be granted only in "rarest of rare" circumstances. However, the court did put on hold certain contentious provisions of the law.

Among the provisions temporarily suspended are those empowering district collectors to determine whether a property claimed as waqf belongs to the government, and the clause requiring that only a lawful property owner who has been a practicing Muslim for at least five years may create a waqf through a formal deed.

Chief Justice of India Bhushan R. Gavai clarified that the five-year practicing Muslim requirement will take effect only after state governments frame rules to determine adherence to Islam. The bench, also comprising Justice A.G. Masih, maintained that mandatory registration of waqf properties on a centralised portal cannot be interfered with. However, the authority granted to district collectors to make final determinations on disputed properties and alter revenue records was suspended. The court ruled that such decisions must be subject to adjudication by waqf tribunals and the respective high courts, and until such proceedings conclude, no third-party rights can be created in these properties.

The court further directed that the Central Waqf Council - an advisory body under the Union Ministry of Minority Affairs chaired by the Union minister - should not have more than four non-Muslim members. Similarly, state waqf boards should not include more than three non-Muslim members. While the amended law does not mandate it, the bench suggested that the chief executive officers of waqf boards should preferably be Muslims.

CJI Gavai emphasized that legislation enjoys a presumption of constitutionality, but safeguards were necessary, justifying the suspension of select provisions.

This ruling follows an August 22 hearing, when the CJI-led bench declined to stay a Union government notification mandating that all waqf properties be registered on a centralised digital portal within six months. The notification, issued by the Ministry of Minority Affairs on June 6, requires registration on the UMEED (Unified Waqf Management, Empowerment, Efficiency, and Development) portal. At that time, the CJI noted that the court could not pass an interim stay as the judgment had already been reserved. "How can we pass an interim order when the judgment has been reserved? Sorry! You comply with whatever is required. We will consider everything in our order," he told counsel pressing for relief.

The petitions challenging the Act were argued over three days in May, with the bench reserving its order on May 22. During the hearings, the court highlighted that maintaining an inventory of waqf properties has been part of India's legal framework for over a century. "From the Mussalman Waqf Act of 1923 to the Waqf Act of 1954 and subsequent reports, registration has always been emphasised. The scheme has evolved but the principle remains," the bench observed.

Senior advocate Kapil Sibal, representing one of the petitioners, argued that shifting the responsibility of registration onto waqf custodians unfairly penalizes the community for the state's failure, which had been responsible for surveying and identifying properties since 1954. He contended that the law undermines Muslims' constitutional rights under Article 26 to manage their own property.

Petitioners also challenged the provision requiring a practicing Muslim of at least five years to dedicate property as waqf, a restriction not applied to other religious endowments. Solicitor General Tushar Mehta defended the amendment, stating that allowing "any person" to create waqf, as permitted under the 2013 law, was conceptually flawed. He argued that waqf, being an Islamic institution, should not be open to non-Islamic persons and that the 2025 amendments aim to enhance transparency and prevent misuse.

Another point of contention was the restriction preventing the creation of waqf on tribal land. Mehta explained that this safeguard is meant to protect vulnerable communities and preserve cultural identity, citing a joint parliamentary committee report. However, the bench expressed skepticism, questioning the link between tribal land restrictions and Islamic principles, noting that fraudulent waqf creation could be addressed through existing legal remedies.