Possibility Of Person Converting To Islam To Take Benefit Of Waqf Act Protection Can’t Be Ruled Out: Supreme Court

While putting a stay on certain provisions of the Waqf (Amendment Act), 2025, the Supreme Court remarked that the possibility of any person converting to the Islamic religion to take benefit of the Waqf Act, cannot be ruled out.

The Court was hearing a batch of Writ Petitions, challenging the validity of several of the Sections of the Amendment Act on the ground of they being ultra vires the Constitution of India being violative of Articles 14, 15, 19, 21, 25, 26, 29, 30, and 300A of the Constitution.

The two-Judge Bench comprising Chief Justice of India (CJI) B.R. Gavai and Justice Augustine George Masih observed, “… as early as in 1923, the legislature had noticed that it was common that a waqf endowment had come to be regarded by the public as only a “clever device” to tie up property in order to defeat creditors and generally to evade the law under the cloak of a plausible dedication to the Almighty. Therefore, the possibility of any person not belonging to Muslim community, converting to the Islamic religion 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 a plausible dedication cannot be ruled out.”

The Bench said that the provision that requires a person dedicating a property to show or demonstrate that he is practicing Islam for at least 5 years cannot be said to be arbitrary or discriminatory.

Senior Advocates Kapil Sibal, Rajeev Dhavan, A.M. Singhvi, C.U. Singh, and Huzefa Ahmadi appeared on behalf of the Petitioners while Solicitor General of India (SGI) Tushar Mehta, Senior Advocates Rakesh Dwivedi, Ranjit Kumar, Gopal Sankaranarayanan, and Guru Krishna Kumar appeared on behalf of the Respondents.

Court’s Observations

The Supreme Court noted, “… a statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. In doing so, the Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. It has been held that unless there is flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature cannot be declared invalid. It has also been held that in order to declare a law unconstitutional, the Court has to come to a conclusion that the violation of any of the provisions of the Constitution is so evident that it leaves no manner of doubt.”

The Court reiterated that the grounds on which a legislation can be declared invalid is with regard to the legislative competence of legislature or that such a legislation is in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other provision of the Constitution or that it is manifestly arbitrary.

The Court said that many persons, who, under the relevant personal laws, are not entitled to marry with a second woman during the subsistence of their first marriage and who are liable to be prosecuted for the offence of bigamy in such a case, in order to avoid the rigour of criminal offence, convert themselves into Islamic religion.

“A perusal of the Statement of Objects and Reasons of the Mussalman Wakf Act, 1923 would reveal that as early as in 1923, the misuse of the trust property was found to be so common that a waqf endowment had come to be regarded by the public as only a “clever device” to tie up the property in order to defeat creditors and generally to evade the law under the cloak of a plausible dedication to the Almighty. As such, the provision which has been enacted with a view to ensure that only persons who are genuinely professing Islamic religion and have not converted themselves to Islam only in order to evade the clutches of law cannot be said to be arbitrary”, it added.

The Court held that such a provision which requires a person practicing Islam for 5 years for creating a waqf cannot be said to be arbitrary.

Conclusion and Directions

To protect the interest of all the parties and balance the equities during pendency of the matters, the Court issued the following directions –

(i) The following part of clause (r) of Section 3 of the Amended Waqf Act

“any person showing or demonstrating that he is professing Islam for at least five years”

shall stand stayed until the rules are framed by the State Government for providing a mechanism for determining the question as to whether a person has been practicing Islam for at least five years or not;

(ii) The proviso to sub-section (2) of Section 3C of the Amended Waqf Act, which reads thus:

“Provided that such property shall not be treated as waqf property till the designated officer submits his report.”

and the provisions of sub-sections (3) and (4) of Section 3C of the Amended Waqf Act, which read thus:

“(3) 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. (4) The State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate correction in the records.”

shall stand stayed;

(iii) The Court directed that unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the Tribunal and subject to further orders by the High Court, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the Board shall be affected. However, upon commencement of an inquiry under Section 3C of the Amended Waqf Act till the final determination by the Tribunal under Section 83 of the Amended Waqf Act, subject to further orders of the High Court in an Appeal, no third-party rights would be created in respect of such properties;

(iv) Insofar as Central Waqf Council constituted under Section 9 of the Amended Waqf Act is concerned, it shall not consist of more than 4 non-Muslim members out of 22. Equally, insofar as the Board constituted under Section 14 of the Amended Waqf Act is concerned, it shall not consist of more than 3 non-Muslim members out of 11;

(v) The Court stayed the provision of Section 23 of the Amended Waqf Act, and directed that as far as possible, an effort should be made to appoint the Chief Executive Officer of the Board who is the ex officio Secretary from amongst the Muslim community; and

The Court, therefore, clarified that what has been observed by it is upon its prima facie consideration for the purpose of examining as to whether an interim stay should be granted or not to the impugned Act or the provision(s) contained therein. The observations made hereinabove will 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 provision(s) therein.

Accordingly, the Apex Court refused to stay the provisions of the entire statute.

Cause Title- In Re: The Waqf Amendment Act, 2025 (1) (Neutral Citation: 2025 INSC 1116)

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