Today, the Supreme Court, while putting a stay on certain provisions of the Waqf Amendment Act, 2025, observed that permitting the Collector to determine the Rights of the properties will be against the doctrine of separation of powers and the Executive cannot be permitted to determine the rights of the citizen.

The Court also observed that any person showing or demonstrating that they are practicing Islam for at least five years to create Waqf has been stayed till State Governments frame rules for providing a mechanism to determine the question whether a person has been practising Islam for 5 years or more.

On May 22, 2025, the Supreme Court reserved its order on the batch of petitions seeking an interim stay on the operation of certain provisions of the Waqf (Amendment) Act, 2025.

The Bench of Chief Justice B.R Gavai and Justice Augustine George Mashi observed that the case was not made out to stay the entire operation of the statute, however, certain sections of the Act that were under challenge needed protection.


The CJI pronounced the interim order while stating that the presumption is always in favour of statues and only in the rarest of rare cases, the Court can grant the stay of the provisions challenged before the Court.

"We have found that the entire act was which was sought to be challenged, the basic challenge was with regard to Sections 3, 3C... 23, 9, 14, 26, 104... of the Amendment Act. We have gone to the legislative history of right from the 1923, Act", the CJI said.

The Supreme Court held that the case was not made out to stay the entire operation of the statute, however, certain sections of the Act that were under challenge needed protection.

Accordingly, the CJI continued, and said that any person showing or demonstrating that they are practicing Islam for at least five years to create Waqf has been stayed till State Governments frame rules for providing a mechanism to determine the question whether a person has been practising Islam for 5 years or more.

"The proviso to 3C(2) of the Amendment Act... provided that such property shall not be treated as Waqf property till designated officer submits it's report", the CJI said.

The Court underscored the provision of Sub-sections 3 and 4 of Section 3C of the Amendment Act, which reads as, "In case the designated officer determines the property to be Government Property, he shall make necessary corrections in revenue records and submit a report in this regard to State Government. The State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate correction in records" and stayed the same.

The Court observed that permitting the Collector to determine the Rights of the properties will be against the doctrine of separation of powers and the Executive cannot be permitted to determine the rights of the citizen.

"We directed that until there is finality to the findings by the designated officer, the possession or the rights of the properties will not be affected", the Court observed.

Further, the Court directed, "Unless the issues with regard to the title of the Waqf properties in terms of Section 3C of the Amended Waqf Act is finally decided the proceedings initiated under Section 83 of the Act by the Tribunal, and subject to further orders of the High Court, neither the Waqfs will be dispossessed of the property, nor the entry into the revenue record shall be affected. However, upon commencement of enquiry under Section 3C of the Amendment Act...no third party right will be created in this regard of such properties."

Thereupon, the Court also directed that Central Waqf constituted under Section 9 of the Amendment Waqf Act was concerned, it shall not consist of more than four non-Muslim members out of twenty.

Though the Court was not inclined to stay the operations Section 23 of the Amendment Waqf Act, the Bench directed that an effort should be made that an ex-officio officer must be from a Muslim community.

The Court clarified that the observations made by it will not preclude the parties from making submissions with regard to the validity of the provisions of the Act in final hearing.

Background

The Central Government had issued a notification stating that the provisions of the Waqf (Amendment) Act, 2025 (Act 14 of 2025), would come into force on April 8, 2025. A pivotal change that the Act proposes to make involves the application of the Limitation Act, 1963 from the commencement of the Amendment Act aiming to bring resolution of disputes that have often been protracted. The Act further proposes to redefine the authority responsible for handling disputes related to encroachments on government lands by Waqf properties, shifting this responsibility to a higher state government-designated authority, as per the Joint Parliamentary Committee's (JPC) recommendations.

While, on May 21, 2025, the Union of India defended that the Waqf Amendment Act, 2025 is not an essential part of Islam and denied allegations that the amendments facilitate the takeover of private properties by Waqf Boards, and that waqf by user is not a fundamental right, but one conferred by statute.

On May 15, the Court had clarified, "We will not consider any request to hear a challenge against provisions of 1995 Act...We are making it clear...Just because 2025 Act is considered here...cannot make those points now...". The Court made the said observation while Counsel for parties challenging provisions of the 1995 Act, as well as the 2025 amendment, as violative of the rights of people of other religions, sought allocation of time to make submissions on the next date.

On April 17, 2025, the Court had recorded the Centre's statement that during the pendency of the matter, no appointments would be made to the Waqf Boards or the Central and State Waqf Councils under Sections 9 and 14 of the Act.

The Waqf (Amendment) Bill was passed in Lok Sabha and Rajya Sabha following a marathon over 12-hour debates in both Houses, and also received President Droupadi Murmu's nod. Concluding his speech before the Bill was put to the vote, Union Minority Affairs Minister Kiren Rijiju said that the word 'secular' is being misused and that India is secular, as opposed to Pakistan and Bangladesh, because the majority in India is secular and that this fact should be acknowledged. He also dismissed the charge that the government attempts to divide Muslims in the Country and said that the Bill unites all sects in the Muslim community.

“The provisions of the Waqf Board have nothing to do with the management of any mosque, temple, or religious site. It is simply a matter of property management. However, Waqf properties are managed by the Waqf Board and the Mutawalli. If someone fails to understand this basic distinction or deliberately chooses not to, then I have no solution for that” Rijiju remarked.

Cause Title: In Re The Waqf (Amendment) Act, 2025 (W.P.(C) No. 276/2025)

Chief Justice of India B. R. GavaiJustice Augustine George Masih

Pridhi Chopra

    Pridhi Chopra was earlier practicing as an Advocate in Delhi. She pursued B.A. (H) English from Gargi College, University of Delhi, and subsequently pursued a degree in Law.