Prima Facie Not Arbitrary: Supreme Court Refuses To Stay Waqf (Amendment) Act Provision Abolishing “Waqf By User”

The Supreme Court has refused to stay the Waqf (Amendment) Act, 2025 provision that abolishes the concept of “Waqf by User”.

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 held, “After noticing such instances of misuse, if the legislature finds that the concept of “Waqf by User” has to be abolished and that too prospectively, in our view, the same cannot prima facie be said to be arbitrary. In any case, as submitted by the learned Solicitor General, the deletion of clause (i) of Section 3(r) of the Original Waqf Act would come into effect from the date on which the impugned Act has come into effect. The said provision would, therefore, not apply retrospectively. Therefore, the contention of the petitioners that the lands vested in the waqfs would be grabbed by the Government prima facie holds no water.”

The Bench observed that if the legislature, in 2025, finds that on account of the concept of “Waqf by User”, huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary.

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.

Brief Facts

Though the Petitioners sought to challenge the constitutionality of almost all the Sections of the impugned Act, the main challenge was to the amendments carried out in Sections 3(r), 3C, 3D, 3E, 9, 14, 23, 36, 104, 107, 108, and 108A of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995. Hence, most contentious Sections of the impugned Act were Sections 4(ix)(a), 4(ix)(b), 5, 10, 12, 16, 21, 43, 44, and 45 which have amended the provisions of the Waqf Act, 1995. The Court had to consider whether the Petitioners made out a strong case to show that the amendments brought into the Old Waqf Act by the impugned Act are beyond the legislative competence of the Parliament or ex-facie point out violation of any of the provisions in Part III of the Constitution or constitutional principles or is manifestly arbitrary.

Issues for Consideration

The following three issues arose before the Court for consideration –

(i) Challenge to Section 3(r) of the Amended Waqf Act, which de-recognises ‘Waqf by user’ prospectively;

(ii) Challenge to special provision for Government Properties under Section 3C of the Amended Waqf Act; and

(iii) Changes in the composition of the Central Waqf Council and State Waqf Board under Section 9 and 14 of the Amended Waqf Act, respectively.

Court’s Observations

The Supreme Court reiterated that the Courts should be very slow in granting interim relief by way of staying the provisions of an enactment.

“Interim relief of such a nature can be granted in rare and exceptional cases; where parties are in a position to point out that either the legislature which enacted the law lacks legislative competence or the provisions are ex-facie in violation of any of the provisions in Part III of the Constitution or constitutional principles or is manifestly arbitrary. Reference in this respect can be made to the following landmark judgments of this Court”, it noted.

The Court said that it has consistently been held that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.

“It is quite well settled that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discrimination is based on adequate grounds. Equally, it is settled that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. It has also been held that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation”, it added.

The Court further 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.

Section 4(ix)(a) of the impugned Act

The Court was of the view that such a provision cannot be said to be arbitrary or discriminatory.

“… 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”, it remarked.

The Court mentioned 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.

“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 held.

The Court, therefore, was of the view that such a provision which requires a person practicing Islam for 5 years for creating a waqf cannot be said to be arbitrary.

“However, we are of the considered view that since no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practicing Islam for at least 5 years or not, such a provision cannot be given effect to immediately. We are, therefore, of the considered view that unless the rules are made by the Central Government by exercising its rule-making power under Section 109 of the Amended Waqf Act, the provision of Section 3(r) of the Amended Waqf Act requiring a person to show or demonstrate practice of Islam for at least 5 years in order to dedicate a movable or immovable property for the purpose of creating a waqf cannot be given effect to”, it clarified.

Section 4(ix)(b) of the impugned Act

The next challenge was with regard to the deletion of the clause concerning “Waqf by User” i.e., clause (i) of Section 3(r) of the Original Waqf Act.

It was contended by the Petitioners that “Waqf by User” is a concept which is recognized under the Muslim law and the deletion of the said provision is arbitrary and on the contrary, it was contended by the Solicitor General that the amendment to Section 3(r)(i) of the Original Waqf Act would only have a prospective effect.

“It can be seen that Section 36 of the Original Waqf Act required every waqf created before or after the commencement of the said Act to be registered. … As has also been observed by us hereinabove, right from 1923, in all the enactments we have referred to, there was a requirement of registration of waqfs. We are, therefore, of the view that if Mutawallis for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered”, it said.

The Court observed that if for 30 long years, the Mutawallis had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary.

“Further, if the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the impugned Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary”, it also held.

Section 5 of the impugned Act (Section 3C of the Amended Waqf Act)

The Court was of the view that a provision, by way of which even before an inquiry is conducted by the designated officer as to whether any property is a Government property or not and even before the designated officer submits his report to the State Government, providing that such a property cannot be treated as waqf property in the interregnum, is, at least, prima facie arbitrary.

Section 5 of the impugned Act (Section 3D of the Amended Waqf Act)

The Court observed, “… a provision such as Section 3D of the Amended Waqf Act, which has been enacted with the avowed object of safeguarding the interest of one of the most marginalized and vulnerable sections of our country, i.e., the Scheduled Tribes cannot be said to have no nexus with the object sought to be achieved. Such a provision cannot, therefore, be said to be prima facie arbitrary so as to stay the same.”

Sections 10, 12 and 16 of the impugned Act

The Court directed that the Central Waqf Council should not have non-Muslim members exceeding 4 in number and 3 non-Muslim members insofar as Board is concerned.

“As such, more than 2/3rd members of the Board i.e., majority of the Board will comprise of Muslim members. We, therefore, do not find that a prima facie case is made out for staying the said provision. However, there was an opinion that as soon as possible an endeavour should be made to appoint a Chief Executive Officer who belongs to Muslim community”, it held.

Section 21 of the impugned Act

The Court remarked that an ample amount of time has been given for the waqfs which are not registered to get themselves registered.

“Apart from that, the proviso to sub-section (10) of Section 36 of the Amended Waqf Act provides that an application may be entertained by the court by way of such a suit etc., after the period of 6 months specified under the said sub-section if the applicant specifies sufficient cause. We are, therefore, of the prima facie view that such a provision cannot be held to be arbitrary or discriminatory”, it said.

Section 43 of the impugned Act

The Court noted that the said amendment has been brought to make it consistent with the definition of waqf under Section 3(r) of the Amended Waqf Act, which provides that waqf can be created only by a person showing or demonstrating that he is practicing Islam for at least five years, and therefore, deletion of Section 104 of the Original Waqf Act is not arbitrary.

Section 44 of the impugned Act

Furthermore, the Court said, “We, however, fail to understand as to how the Limitation Act, 1963, which is otherwise applicable to any other proceedings with regard to any claim or interest pertaining to immovable property, and which is now being made applicable to the claim or interest pertaining to immovable property comprised in a waqf can be said to be arbitrary. On the contrary, we are of the considered view that it, in fact, removes discrimination which was earlier provided in the unamended Act.”

Hence, it refused to stay the aforesaid provision.

Section 45 of the impugned Act

The Court held that in the Original Waqf Act, the said provision did not exist from 1995 till 2013 and as the legislature is competent to bring any provision in the statute book, it is also competent to delete the said provision from the statute book; therefore, there is no substance in the challenge in that regard.

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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