Should interim stay be imposed on the Waqf Amendment Act 2025?

Transcript:

Hello everyone and welcome to SCO’s channel.

I’m Spandana and today we’re going to be talking about the challenge to the constitutionality of the Waqf (Amendment) Act 2025.

When the Court resumes in July, a Bench led by Chief Justice BR Gavai and comprising Justice AG Masih is expected to deliver the decision on whether an interim stay must be imposed on the 2025 Act while the larger challenge to its constitutionality remains pending before the Court. 

Before we get into what the key arguments in this case were, here’s some background.

The Bill was first introduced in the Lok Sabha on 8th August 2024. The Union had described it as a sweeping reform aimed at improving “the efficiency of the administration and management of waqf properties.” The Parliament passed the Bill on 4th April after over 12 hours of deliberation. But the Bill immediately sparked controversy. Over 65 petitions challenging it were filed at the top court by members of the community and the opposition.

They criticised the Bill, which substantially expands the Union’s control over waqf properties. The Bill received presidential assent on 5th April.

Significantly, the amendment does away with the concept of waqf by user. Further, it increases the government’s involvement in managing waqf assets, and resolving related disputes. Moreover, it also mandates the inclusion of non-Muslim members on waqf boards.

Now, the government has maintained that these changes are aimed at enhancing transparency and building accountability. Critics, however, including members of the opposition, have contended that the amendments undermine the Muslim community’s religious autonomy, and that the Act is aimed at reducing Muslims in the country to “second-class citizens.”

Before the Court is a question of both the intent and content of the 2025 Act. On the first two days of hearings, the case was heard by former Chief Justice Sanjiv Khanna. However, as his retirement was nearing, Chief Justice Khanna deferred hearings in the case to a bench led by CJI Gavai.

After CJI Gavai assumed office, a Bench led by him began hearing the case on 16th May. After three days of arguments, the Bench reserved judgement on 22nd May. Arguments before the Gavai-led Bench were centred around whether interim stay must be imposed on the Act while the larger challenge remains pending.

Now let’s quickly run over the key contentions by the petitioners and the Union government before the Supreme Court.

Waqf by user

Clause 4(ix)(b) of the 2025 Act deletes subclause 1 of Section 3(r) of the 1995 Act. This provision recognized waqf based on long standing public religious use, even without a written declaration. This is known as waqf by user. Clause 21(a) mandates a waqf deed for validity. Further, clause 4(ix)(e) bars invoking the principle of waqf by user in cases of disputes or government land claims.

Petitioners argued that this amendment deletes the concept of waqf by user entirely, and that’s a problem. They said that many waqf properties have no paperwork because they were created centuries ago and have spanned over generations. Without formal registration, these would now be invalid. They called the amendment arbitrary and a violation of religious freedom.

But the Union disagreed. They said that registration of waqf properties had been mandatory for over a century, and people had several chances to comply with registration. The Union also argued that waqf by user is a legal and not a religious concept. Therefore, Parliament can change the law related to it.

Section 3D

Section 3D of the amendment Act removes waqf status from ASI protected monuments. It declares that any declaration of a waqf property as a ‘protected monument’ under the Ancient Monuments Preservation Act 1904 or the Ancient Monuments and Archaeological Sites and Remains Act 1958 is void.

Petitioners said that this amendment strips mosques and religious sites of their identity even if they’ve been used for worship for generations.

The government responded by saying that this clause is necessary because waqf boards have been obstructing conservation work. Further, that religious practice won’t be affected as long as it’s customary.

Who can create a waqf?

Crucially, the amendment alters the definitions for waqf and waqif. Waqif is the person creating the waqf under section 3R.

The provision requires a waqif to demonstrate that they have practised Islam for at least five years in order to be eligible to create a waqf. Petitioners argued that this provision was vague and discriminatory and violated the right to equality. They pointed out that no other religion had such a rule.

The government responded that this provision was a safeguard to prevent people from misusing the waqf framework. Section 3E introduced by Clause 5 of the amendment Act, bars Scheduled Tribe members from creating a waqf.

Waqf for Scheduled Tribes

Petitioners said that this provision unfairly targets Muslim members belonging to the Scheduled Tribe category and denies them their right to religious charity.

The Union, on the other hand, said that this amendment was meant to protect tribal land from encroachment and was not discriminatory. They said that the amendment was in line with the constitutional goals to uplift members of the Scheduled Tribe community and prevent concerns that more tribal land was being acquired by waqf boards.

Waqf administration

Clause 10 of the 2025 Act modifies Section 9 of the 1995 Act, which required all members of the Central Waqf Council except the ex-officio chairperson, who was a Union Minister for Waqf to be Muslims. Now, only 10 members must be mandatorily Muslim, while the remaining 12 can belong to any community.

Further, Clause 12 of the 2025 Act amends Section 14, read along with Section 6A, altering the position of state waqf boards. Previously, all members were required to be Muslims, but under the new provision, only 4 out of 11 must be mandatorily Muslim, while the rest are open to members of any faith.

The petitioners argued that these changes severely dilute Muslim representation in institutions created to manage Islamic religious endowments. They contended that the amendments undermine the community’s right to self governance of its religious and charitable trusts, therefore violating Articles 14, 19, 21, 25, and 26 of the Constitution. The risk of this amendment, they argued, is that Muslims could be reduced to a minority in bodies meant to serve their community, stripping them of the effective decision-making power.

The Union argued that both the Central Waqf Council and the State Waqf Boards retain a Muslim majority, with non-Muslim members limited to a minority. It also emphasized that these bodies primarily perform secular functions such as administration, finance, and legal oversight, not religious duties. Therefore, including non-Muslim members is intended to enhance inclusivity and reflect the secular aspects of waqf governance. The Union also cited Supreme Court decisions to argue that Article 26 does not guarantee an absolute right to manage religious property.

These were the key arguments in the case. Look at our Arguments Matrix for a snapshot of all arguments and refer to our Cases page for our detailed coverage on the case.

When the Court resumes in July, we’ll be sure to bring you all the updates on this case and several others. So keep following scobserver.in

Let us know in the comments below which other case you’d like for us to break down. Thank you for tuning in!