Interim Order, Court Observations: What You Should Know About Waqf Order

The Supreme Court on Monday has issued an interim stay on certain provision of the Waqf (Amendment) Act, 2025. A bench of Chief Justice BR Gavai and Justice AG Masih, while refusing to stay the entire Act, observed there is always a presumption in favour of the constitutionality of a law passed by Parliament and a stay is only provided in rarest of rare cases. The Court today observed that in totality of the circumstances, no case is made out to stay the entire Waqf Act.

The interim stay is on three provisions - one must be a 'practicing Muslim' for five years to create a waqf, the powers of a District Collector to rule on disputed properties, and 'waqf by user'.

Breaking down the Supreme Court order

Must be 'practicing Muslim' for five years to create a waqf - The court held this provision does not seem to be arbitrary, but stayed its execution till the centre and state governments can introduce a mechanism to establish if a person has, in fact, been practicing Islam for five years.

Powers of District Collector - The court stayed this provision, which gave the senior civil service officers powers to adjudicate upon disputed waqfs, which could have led to large-scale denotification of properties. The court said it is, in fact its job to adjudicate upon such disputes, including over waqf properties over which the government claims ownership.

The court directed that unless issues with regard to ownership in terms of Section 3C of the amended Waqf Act (which deals with a waqf claimed by the government) are settled by a waqf tribunal, and subject to further orders by the concerned High Court, the waqfs in question will not be dispossessed and the entry in revenue records and those of board shall not be affected.

The court also said no third-party rights can be created in such cases till it settles this case.

Waqf-by-user - The court's initial view was that the move to abolish waqf-by-user was not arbitrary. This, the court said, is a concept that recognises a property as waqf not through formal dedication but consistent public use of a property for a religious purpose.

The amended law deleted a section of the 1995 Act that recognised this concept.

On the status of existing waqf-by-user cases, the court said revenue records could not be altered without a tribunal adjudicating the dispute and an appeal, if filed, heard by a High Court.

Petitioners had argued deletion of this provision will affect waqfs that do not have deeds of registration, i.e., the reference was largely to historical properties.

However, the court pointed out the original law, from 1923, included a requirement to register waqfs and observed if they had failed to do so for over a century they could not complain now.

On the contention that such waqfs may not have deeds available now, the court noted that under the original law a copy of the deed was not mandatory for a registration application.

If no deed is available, the application can be made by giving full particulars, as far as they are known to the applicant, with regard to origin, nature and objects of the waqf, the court said.

Non-Muslims on waqf boards - The court said the Central Waqf Council cannot have more than four-non Muslim members out of the total of 22. Similarly, Waqf Boards can have no more than three of 11 members as non-Muslims.

Waqf Board Chief Executive should be Muslim - The court, however, was not inclined to stay a provision that deals with appointment of said CEO. It did, though, direct 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.

Waqf A 'Clever Device'

While passing the interim order the court observed the legislature had noticed it was common that a waqf had come to be regarded by the public as a 'clever device' to tie up property in order to defeat creditors and evade the law, under the cloak of a plausible religious dedication.

"Therefore, the possibility of any person not belonging to the 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 court said it would, therefore, "not be out of place to mention that many persons, who, under relevant personal laws, are not entitled to marry a second woman during 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."

Thus the court held the amended law, which has been enacted with a view to ensure that only persons genuinely professing adherence to Islam, or had not converted to evade the law, cannot be 'arbitrary'. "We are, therefore, prima facie of the view that such a provision, which requires a person practicing Islam for five years for creating a waqf cannot be 'arbitrary'."

Waqf Can Be Through Your Property

The court also said a waqf could not be donated by a third party, i.e., a person who does not own the property or finances in question, or a property owned by any government. "... we are of the prima facie view that such a requirement cannot be held to be arbitrary," the court held.

No Stay For Monuments, Tribal Lands

The court also declined to stay that remove waqf status for historical monuments and which bars tribal lands from being declared as a waqf. The court also did not stay deletion of a section earlier the earlier law that allowed non-Muslims also to create waqfs.