Supreme Court Stays Certain Provisions Of Waqf Amendment Act 2025; No Interference With Registration Requirement
he Supreme Court today(September 14) stayed certain provisions of the Waqf (Amendment) Act 2025. A bench comprising Chief Justice of India BR Gavai and Justice AG Masih interfered with the following provisions . 1. The provision in Section 3(1)(r) that a person should be a practitioner of Islam for 5 years to create a Waqf has been stayed till State Governments frame rules for providing mechanism to determine the question whether a person has been practising Islam for 5 years or more. Without such a mechanism, the privison will lead to an “arbitrary exercise of power,” the Court observed.
2. The proviso to Section 3C(2) that a Waqf property will not be treated a Waqf Property till the designated officer of the Government submits his report on whether there is encroachment has been stayed. Also, the Court stayed Section 3C(3) which says – “In case the designated officer determines the property to be a Government property, he shall make necessary corrections in revenue records and submit a report in this regard to the State Government” . The Court also stayed Section 3C(4) which says that the State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate correction in the records”.
“Permitting the collector to determine the rights is against the separation of powers; Executive can’t be permitted to determine the rights of citizens,” CJI Gavai observed, Until there is finality of the findings by the designated officer, the rights of property will not be affected. “Until the issue of the title of the waqf property in terms of Section 3C is not finally decided, the procedings initiated under Section 83 by the tribunal and subject to further orders by high court, neither the waqf will be dispossed of the property nor the revenue record and records of the Board shall be affected. However, upon commencement of inquiry under Section 3C, and till final determination under Section 83, and subject to further orders of the high court in appeal, no third-party rights shall be created in respect of such properties,” the Court observed.
“Permitting the collector to determine the rights is against the separation of powers; Executive can’t be permitted to determine the rights of citizens,” CJI Gavai observed, Until there is finality of the findings by the designated officer, the rights of property will not be affected. “Until the issue of the title of the waqf property in terms of Section 3C is not finally decided, the procedings initiated under Section 83 by the tribunal and subject to further orders by high court, neither the waqf will be dispossed of the property nor the revenue record and records of the Board shall be affected. However, upon commencement of inquiry under Section 3C, and till final determination under Section 83, and subject to further orders of the high court in appeal, no third-party rights shall be created in respect of such properties,” the Court observed.
3. The provision allowing the nomination of non-Muslim members to the Waqf Boards has not been stayed. However, the Court observed that, as far as possible, the Ex-officio member of the Board, should be a Muslim person. The Court observed that for the Central Waqf Councul, it shall not consist of more than 4 non-muslim members, and for State Waqf Board, not more than 3 non-Muslim members. The Court did not interfere with the provision mandating registration, saying that it is not a new requirement, as this condition was there in the previous enactments of 1995 and 2013 as well. However, the Court has extended the timelines for registration (which will be known once the judgment is uploaded.)
The Court had reserved the order on May 22 after hearing the parties over three days. The petitions are filed challenging the constitutionality of the sweeping changes made to the Waqf law by the amendments passed by the Parliament in 2025.
In April, after a bench led by former CJI Sanjiv Khanna expressed some prima facie reservations about some of the provisions, the Union undertook that non-Muslims would not be appointed to the State Waqf Boards and the Central Waqf Councils during the pendency of the matter. The Centre also agreed that no Waqf, including a Waqf by user, whether declared by way of notification or by way of registration, shall be de-notified, nor will their character or status be changed.
AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, Samastha Kerala Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, TMC MP Mahua Moitra, Indian Union Muslim League, All India Muslim Personal Law Board, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, Communist Party of India, DMK etc., are some of the petitioners. Intervention applications have been filed by five BJP-led States: Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra, supporting the legislation. Recently, the State of Kerala has also filed an intervention supporting the 2025 Amendment.
Common provisions challenged in all petitions
Omission of ‘waqf by user’ provision, inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board, pre-condition of 5 years as practising Muslim for create of waqf, allowing Government to decide disputes regarding encroachment of government property, application of Limitation Act to Waqf Act, invalidating Waqf created over ASI protected monuments, restrictions on creating Waqfs over scheduled areas, limiting the inclusion of women members to two in the Council and Boards, diluting waqf-alal-aulad, renaming ‘Waqf Act, 1995 to “Unifed Waqf Management, Empowerment, Efficiency and Development,” providing appeal against the Tribunal’s order etc., are some of the provisons under challenge.
Case Details: IN RE THE WAQF (AMENDMENT)w ACT, 2025 (1)|W.P.(C) No. 276/2025
Source: live Law
