Supreme Court has done a good balancing job on Waqf Amendment Act 2025

No stay but putting on hold key provisions in the interim stage is significant

By Dr. Gyan Pathak

The Supreme Court of India did a balancing exercise on the Waqf Amendment Act 2025 in the interim stage of hearing on September 15, 2025. The apex court refused to stay the act on the one hand, which brought cheer to the Union Government, but put on hold certain controversial key provisions of the legislation which were challenged by the petitioners alleging that they amounted to interference in the affairs of the minority Muslim community, making it unconstitutional since it violated fundamental right to practice religion.

Though the court has rejected the prayer to stay the legislation itself, it clarified that its present direction was based on the prima facie view and will not preclude the parties from making submissions with regard to the validity of the provisions of the Act in final hearing. The court had reserved the order on May 22.

The Opposition has welcomed the interim order and said that the Supreme Court’s interim order has put a “hold” on the “conspiracy and the intention of the government”. Congress MP and communication in-charge Jairam Ramesh said the order “represents a substantial victory” for Opposition parties and “all those members of the Joint Parliamentary Committee who submitted detailed dissent notes”.

BJP has labeled the order a “positive development”. Union Minister for Minority Affairs Kiren Rijiju said “no one can challenge the authority of the Parliament in courts” and that the order was a “stamp” on this. He said that he believed what was decided by the bench is a very good sign for democracy in the country.

It is obvious that the balancing act of the Supreme Court bench comprising of Chief Justice of India BR Gavai and Justice AG Masih has pleased both the ruling establishment and the opposition, while for the Muslim community it is going to be a long legal battle for restoration of their fundamental right to manage the affairs of their religion. The matter obviously needs an in-depth consideration when the bench will hear the case further for its final decision

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However, at this stage, the bench observed that several other provisions in the legislation did not require any interference at the interim stage. Refusing to stay the Waqf Amendment Act 2025, the bench observed that “no case was made to stay the provision of the entire statute.” CJI observed, “The prayer for stay of the impugned Act is, therefore rejected. However, while doing so, in order to protect the interest of all the parties and balance the equities during pendency of this batch of matters, we issue the following orders.”

Though the Supreme Court has issued specific direction on five key issues, it did not interfere with other major contentious issues, such as the abolition of ‘waqf-by-user’, bar on creating waqfs over Scheduled Areas and protected monuments, condition that only Muslim can create Waqfs, and application of the Limitation Act to the Waqf act etc.

The key orders of the bench included stay on the condition that a person should be a practitioner of Islam for at least 5 years till rules are framed by State Governments to provide a mechanism to determine this question. The bench observed that without such a mechanism the provision can lead to arbitrariness.

Nevertheless, the court also observed that this condition of 5-year practice is not per se arbitrary and it was necessary to prevent misuse. The court observed that the possibility of any person not belonging to Muslim community, converting to Islam only in order to take benefit of the protection of Waqf Act so as to defeat creditors and evade the law under the cloak of plausible dedication cannot be ruled out.

The Apex Court stayed the provision allowing the Government to derecognize a Waqf land during the pendency of decision by the Government Officer on the dispute encroachment. The legislation has given rights to Collector of the districts, but the Court said that allowing them to decide the dispute is against the separation of powers. Since the judicial powers are invested in Tribunal and Courts, the bench said that disputed Waqf land will not be affected till the question of title is decided by the Tribunal of the Court. At the same time no third-party rights should be created on such lands till the dispute is decided, the court said in its interim order.

CJI Gavai observed, “Permitting the Collector to determine the rights of the properties is against the doctrine of separation of powers as the Executive can’t be permitted to determine the rights of citizens.”

On another controversial issue of inclusion of non-Muslim members, the court directed that that in the Central Waqf Council, the non-Muslim members cannot exceed four in number, while in the State Waqf Boards, the non-Muslim members cannot exceed thee in number.

The Supreme Court bench did not interfere with the condition of registration, and also did not stay the provision allowing a non-Muslim to be the CEO of the State Waqf Board. However, the court advised that as far as possible, a Muslim person should be appointed on the post. It indirectly implies that appointing a Muslim on the post is the best option.

It is worth recalling that the entire Waqf Amendment is under challenge, CJI Gavai observed that the challenge was essentially to certain specific provisions. The court did not also interfere with the controversial provision of mandating registration on the ground that it was not a new requirement and was in place between 1995 till 2013.

The chief petitioners challenging the constitutional validity and provisions of the Waqf Amendment Act 2025 are AIMIM supremo Asaduddin Owaisi, Association for Protection of Civil Rights, Jamiat Ulema-i-Hid President Arshad Madani, Samast Kerala Jamiatul Ulema, TMC MP Mahua Moitra, Indian Union Muslim League, All India Muslim Personal Law Board, SP MP Siaur Rehman, AAP MLA Amanatuallah Khan, RJD MP Manoj Kumar Jha, CPI, and DMK. BJP led states Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra have filed intervention petitions in support of the legislation. (IPA Service)