Constitutionality of the Waqf Amendment Act, 2025 | Interim Plea Judgement Summary

On stay of the statute 

The Bench reiterated that Courts should be slow in granting interim relief by staying the provisions of a new enactment. Such interim relief can only be granted in “rare and exceptional” cases where parties can demonstrate that the law was manifestly arbitrary, beyond legislative competence or violated constitutional principles or any of the provisions outlined under Part III of the Constitution. The CJI Gavai-authored Judgement held that no case was made out to justify a stay on the entire statute.

However, the Judgement explained why certain specific provisions of the Amendment Act required to be stayed.

Mandatory practice of Islam

The Amendment Act had amended Section 3(r) of the Waqf Act, 1995. It mandated that a waqf can only be created by a person who has practised Islam for at least five years. Prima facie, the Court expressed its view that such a provision was not arbitrary or discriminatory, as alleged by the petitioners.

The Court pointed out that the legislature, as early as 1923, had identified a waqf endowment as a “clever device”, where the public would dedicate their property to the Almighty in order to defeat creditors and evade the law. The Court held that there was a genuine possibility that a non-Muslim person could convert to Islam to take benefit of the protection under the Waqf Act. 

However, the Court found that the provision cannot be given immediate effect as there was no mechanism to ascertain as to whether a person had been practising Islam for at least five years.  Therefore, the Court stayed Section 3(r) stating that it can be given effect once the Union prescribes a procedure under its rule-making power. 

Permanent dedication of property 

The petitioners had challenged the provision which mandated that only the owner can permanently dedicate their property. The Bench held this provision as valid. It relied on the Treatise “Principles of Mahomedan Law” by Mulla which stated that only an “owner” of a property can create a waqf.  

Relying on Key Quranic Verses by Surah Al-Baqarah, the Court observed that the very concept of a waqf is based on charity i.e. to spend one’s own wealth in the way of Allah. It noted that a person cannot do charity using property or money belonging to a third person. The Court held that such a requirement could not be held as arbitrary. 

Waqf by User

Petitioners had challenged the deletion of the clause concerning “Waqf by user”, which means that a property would be considered as a waqf based on its use. The Union had argued that any waqf properties registered before 2025 will not be affected. To this, petitioners had claimed that several ancient waqf properties did not have papers and formal deeds, and were identified only by their continued usage. The Court found that the registration of properties was required in all enactments, right from 1923. Therefore, the Court held that if “Mutawallis for a period of 102 years could not get the waqf registered…they cannot claim that they be allowed to continue with the waqf even if they are not registered.”  Addressing the concerns of the petitioners, regarding the unavailability of deeds for registration, the Court stated that they were not mandatory.  Referring to the Waqf Act, 1995, the Court observed that an application for registration could have been made by giving full particulars “as far as they are known to the applicant”.

The Court, therefore, observed that if for 30 long years, the Mutawallis had chosen not to make an application for registration, they could not argue that the provision demanding a waqf deed is arbitrary. Further, if the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the Amendment Act, all such applications should be accompanied by a copy of the waqf deed, the same cannot be held arbitrary. 

The Court also took the prima facie view that it would not be arbitrary if Parliament finds that the concept of “waqf by user”  required deletion if  such properties had encroached on  those held by the government.

Violation of separation of powers

Section 3C(1) of the Amendment Act states that a property will not be treated as a waqf property if it is identified as a Government property, before or after the commencement of the Act. Section 3C(2) provides that a designated officer above the rank of Collector could conduct an inquiry and submit a report if there is any doubt that a waqf property was a government property. The proviso states that the property will not be treated as a waqf property during the period of the inquiry. The Court found that the proviso is not sustainable in law and arbitrary. 

It held that the determination of title of a property being entrusted to a revenue officer would not be in tune with the principle of separation of powers.  It should be resolved by a judicial or quasi-judicial authority, the Court held. 

The Court also declared that Section 3C(3), which permits the necessary corrections to be made in the revenue records after conclusion of the inquiry, and Section 3C(4), which enables the State Government to direct the State Waqf Board to make appropriate corrections in the revenue records are prima facie arbitrary and liable to be stayed.  The Court, however, added that the Mutawallis of the waqfs should not create any third-party rights in respect of such properties, until the final adjudication by the Tribunal is made. 

Protected monuments

The Court refused to stay Section 3D which barred any declaration of a protected monument as a waqf property. The petitioners had argued that persons practicing Islamic religion would be deprived of performing their religious practices.  The Court pointed out that Section 5(6) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 permits citizens to continue with their customary religious practices even if such an area is a protected monument.  

The Court also refused to stay Section 3E of the Amended Waqf Act, which bars declaration of any land belonging to members of Scheduled Tribes under the provisions of the Fifth or the Sixth Schedule to the Constitution as waqf.  The Court reasoned that the provision safeguards the interest of one of the most marginalised and vulnerable sections of India, i.e., the Scheduled Tribe community, and cannot be said to have no nexus with the object sought to be achieved. 

Inclusion of Non-Muslim Members

The Court did not go into the question related to the inclusion of non–Muslim members in the Central and State Waqf Boards. It took into consideration the Solicitor General Tushar Mehta’s statement that non-Muslim members will not exceed four and three members in the Central Waqf Council and State Waqf Boards respectively. 

However, in order to avoid any ambiguity, the Court issued a direction that the Central Waqf Council should not have non-Muslim members exceeding four out of 22.  Insofar as the State Boards, the Court directed that it shall not consist of more than three non-Muslim members out of 11.  

The Court did not stay the provision which enables a non-Muslim to be appointed a Chief Executive Officer (CEO) of the Central Waqf Council, as majority of the Board consists of Muslim members. However, it directed that an effort should be made to appoint the CEO from the Muslim community, as far as possible.  

Mandatory registration

The petitioners had sought a stay on Section 36 of the Amendment Act which mandated the registration of waqfs. Sub-section (10) of the provision stated that an unregistered waqf cannot approach the Court with a suit or an appeal six months after the Amendment Act comes into effect. The Court reiterated that the requirement of registration of Waqf was not included for the first time in 2025. The Court found that such a provision was not discriminatory and “on the contrary, brings parity with regard to suits etc”.  

Other clauses under challenge

The petitioners had challenged the deletion of Section 104, which permitted persons not professing Islam to give or donate their property for the purpose of waqf. The Court found the petitioner’s submissions as “self-contradictory”. The Judgement stated, “On one hand, it is the contention of the petitioners that waqf is specific to Islamic religion. If that be so, then the deletion of the provision which permitted the person not professing Islam to give or donate his property for the purpose of waqf cannot be said to be arbitrary”. Moreover, the Court reasoned that the provision was deleted to make the Act consistent with Section 3(r) which states that a person professing Islam for at least five years can create a waqf. 

The Court did not find any prima facie case of stay being made out by the petitioners in respect of the provision making the Limitation Act, 1963 applicable to immovable property composed in a waqf.  

The Court made it clear that its observations in the judgement would 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 provisions therein.