SC refuses blanket stay on Waqf Law, Halts key provisions to balance the equities

Rattan Singh Gill

New Delhi, Sept 15:  In a balancing judicial act and in the interest of equities of all contesting parties, the Supreme Court on Monday ordered restrains on few of the provisions of the Waqf Amendment Act 2025 giving opportunity to both side to hail the Apex Court decision and claim their respective victory by one over the other.

In conclusion part of its orders, the Supreme Court said, “In order to protect the interest of all the parties and to balance the equities during pendency of the matters, they issue the following directions:”

While refusing to stay the entire statute, the apex court put on hold a few of controversial provisions, including the five-year practice of Islam-clause for creating Waqf and the powers granted to government officers to adjudicate property disputes.

A Bench of Chief Justice of India B.R. Gavai and Justice Augustine George Masih observed that there is always a presumption in favour of the constitutionality of a law duly enacted by Parliament and that statutes are rarely stayed in their entirety at the interim stage. “Presumption is always in favour of the constitutionality of a statute and intervention can be done only in the rarest of rare cases,” the CJI noted while pronouncing the order.

No Blanket Stay, But Partial Relief

The Court clarified that its directions were prima facie and interim in nature, not affecting the right of either the petitioners or the government to advance full arguments during the final hearing. The Bench said, “Though the entire Act is sought to be challenged, no case has been made out to stay the provisions of the entire statute. However, some sections require protection.”

Among the most significant provisions stayed was Section 3(r), which required that only persons practising Islam for the last five years could dedicate property as Waqf. The Bench held that until state governments frame rules to determine such a condition, the clause would remain inoperative. “Without a proper mechanism, the provision may lead to arbitrary exercise of power,” the Court said.

The Court also struck down, for now, provisions empowering collectors to decide the status of waqf properties. Sections 3C(2), 3C(3), and 3C(4)—which vested sweeping adjudicatory powers in government officers, including the authority to declare properties as government land and alter revenue records—were stayed.

“Permitting the collector to determine property rights is against the doctrine of separation of powers. The executive cannot be permitted to determine the rights of citizens,” the order read.

Protection for Waqf Properties

The Bench directed that until a property’s title is adjudicated under Section 83 by the Waqf Tribunal, and subject to appeal before the High Court, neither possession of the waqf nor its records would be disturbed. At the same time, it restrained the creation of third-party rights in such properties during the pendency of inquiry.

Non-Muslim Members in Waqf Boards Limited

Another contentious issue was the inclusion of non-Muslim members in Waqf Boards and the Central Waqf Council. The Court declined to strike down the provision but imposed numerical caps: no more than four non-Muslims out of 20 in the Central Council, and not more than three out of 11 in State Boards.

On the appointment of Chief Executive Officers of Waqf Boards, the Court said that while it would not interfere with Section 23 allowing non-Muslim CEOs, “as far as possible, efforts should be made to appoint the CEO from the Muslim community.”

The requirement for registration of waqfs was not stayed, with the Bench noting that it had existed under earlier legislations of 1995 and 2013.

Background of the Case

The Waqf (Amendment) Act, 2025, notified on April 8 following presidential assent, introduced sweeping changes in the management of waqf properties. The amendments abolished the concept of “waqf by user,” tightened procedures for registration, introduced a five-year practice requirement, and allowed greater non-Muslim participation in Waqf Councils and Boards.

The law faced immediate backlash from several Muslim organisations, opposition parties, and Waqf Boards across the country. Multiple petitions were filed before the Supreme Court, including by AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, the All India Muslim Personal Law Board, Jamiat Ulema-i-Hind, IUML, and several MPs from Congress, RJD, SP, CPI, DMK, and TMC.

The petitioners argued that the Act was unconstitutional, discriminatory, and violative of Articles 14, 15, 21, 25, 26, 29, and 300-A of the Constitution. They contended that it undermined the autonomy of religious institutions, diluted the character of waqf, and infringed upon secular principles.

The All India Muslim Personal Law Board in its rejoinder had asserted that the amendments infringe upon fundamental rights and compel petitioners to undergo the “essential religious practices” test, which is legally untenable. The Kerala Waqf Board termed the law “subversive of secularism” and a “serious threat to the autonomy of religious institutions.”

On the other hand, the Union government strongly defended the law. Solicitor General Tushar Mehta argued that no ex-facie evidence of unconstitutionality had been presented, and warned against halting a statute passed by Parliament after deliberations. The Centre, in its 1,332-page affidavit, highlighted that the amendments were vetted by a 31-member Joint Parliamentary Committee comprising representatives from multiple parties, including some petitioners themselves.

Key Issues Before Court

Three principal issues had come up during hearings:

1. Denotification of waqf properties – whether government officers could de-recognise properties already declared as waqf by deed or usage.
2. Composition of Waqf Boards and Council – whether non-Muslims could serve as members and CEOs.
3. Five-year practice clause – whether requiring a Muslim to have practised Islam for five years before dedicating property as waqf was valid.

The Court’s interim order has stalled provisions relating to the first and third issues while limiting the scope of the second.

Other Contentious Provisions Not Stayed

The Court did not interfere with provisions abolishing “waqf by user,” banning waqf over Scheduled Areas and protected monuments, applying the Limitation Act to waqf disputes, restricting women’s representation in Councils to two members, or limiting waqf-alal-aulad. It also did not strike down the renaming of the Act as the “Unified Waqf Management, Empowerment, Efficiency and Development Act.”

Political and Social Reactions

The interim ruling is expected to intensify political debate. Opposition leaders who petitioned against the law claimed partial victory, noting that several controversial clauses had been stayed. “The fight is far from over, but today’s order shows the Court recognises the dangers of arbitrary provisions,” AIMIM chief Asaduddin Owaisi said outside the court.

The Union Minority Affairs Ministry, however, welcomed the refusal to stay the entire Act. Officials emphasised that Parliament’s intent was to modernise waqf management and plug loopholes that had been misused for decades. “The Court has upheld the constitutional validity of the Act at large. Only limited provisions have been paused until rules are framed,” an official statement said.

Next Steps

The Supreme Court has adjourned the matter for final hearing on October 7. The interim order will remain in place until then. Both sides will now prepare for a detailed constitutional debate on whether the amendments are compatible with fundamental rights and the secular framework of the Constitution.

For millions of Muslims across India, as well as institutions dependent on waqf endowments, the Court’s final verdict will be crucial in determining how properties meant for religious and charitable purposes are managed in the future.