The Supreme Court of India, in In Re: The Waqf (Amendment) Act, 2025, issued a crucial interim order examining the constitutionality of the recently enacted legislation. Headed by Chief Justice B.R. Gavai, the Bench dealt with a series of petitions challenging the validity of the Act, which has drawn criticism for limiting the rights of the Muslim community in managing waqf institutions, reshaping the composition of Waqf Boards, and restricting the creation of waqfs over certain categories of property.
Granting partial interim relief, the Court clarified that the mandatory registration of waqfs under the amended law would continue to operate until a final verdict is delivered. At the same time, it restrained the Union and State governments from making fresh appointments to the Central Waqf Council or State Waqf Boards, and protected the status of existing waqfs from alteration or de-notification pending final adjudication.
Background of the Case
Multiple petitions were filed, including Writ Petition (Civil) Nos. 276, 314, 284, 331 and 269 of 2025, challenging the constitutional validity of various provisions of the Waqf (Amendment) Act, 2025. The petitioners argued that the amendments were ultra vires the Constitution, violating rights under Articles 14, 15, 19, 21, 25, 26, 29, 30, and Article 300A.
The most contested provisions were:
- Section 3(r): Removal of Waqf by User and requirement of proving practice of Islam for five years before creating a waqf.
- Sections 3C, 3D, 3E: Exclusion of government properties, protected monuments, and tribal lands from waqf creation.
- Sections 9, 14, 23: Altered composition of Waqf Boards and Councils, allowing majority non-Muslim members and bureaucratic appointments.
- Section 36: Mandatory registration of all waqfs with restrictions on remedies for unregistered waqfs.
- Sections 43, 44, 108: Removal of non-Muslim donations, applicability of the Limitation Act, and deletion of evacuee property waqfs.
Petitioners’ Arguments
Senior counsels, including Kapil Sibal, Rajeev Dhavan, A.M. Singhvi, C.U. Singh, and Huzefa Ahmadi, advanced the following arguments:
On Waqf by User: Judicially recognised since the Privy Council’s 1912 ruling (Ilahi Bakhsh) and reaffirmed in the Ram Janmabhumi case. Its removal disproportionately affects Muslims and amounts to discrimination under Articles 14, 15, and 25.
On Government Property and Monuments: Section 3C allows unilateral declaration of waqf properties as government land without due process. Section 3D undermines religious practices in monuments such as mosques within ASI-protected sites.
On Tribal Lands (Section 3E): Prohibiting waqf creation by Muslims in Scheduled Areas violates both religious freedom and equality.
On Board Composition: Amendments allow majority non-Muslim members, diluting community self-management of waqfs and undermining Articles 25–26.
On Mandatory Registration: Section 36 creates a “Catch-22”—registration is compulsory, but the Collector can block it by declaring the property disputed. Without registration, no legal remedy is available. Oral waqfs, valid under Islamic law, are excluded.
On Limitation and Donations: The Act bars waqfs from relying on historic claims by applying the Limitation Act and prevents non-Muslims from donating property for waqf purposes, violating Article 15.
Respondents’ Arguments
Solicitor General Tushar Mehta, along with other senior counsel, defended the Act:
The presumption of constitutionality applies; Parliament acted within its legislative competence.
- Waqf by User was widely misused to encroach upon government land. For example, vast chunks of land in Andhra Pradesh and Telangana were declared waqf without ownership.
- Section 3C only provides a mechanism for inquiry by a designated officer; ultimate adjudication lies with the Waqf Tribunal and appellate courts.
- Inclusion of non-Muslims in Boards is minimal and confined to secular, administrative matters such as finance, audit, and encroachment removal.
- Registration has been historically emphasised since the 1923 Mussalman Wakf Act.
- Restrictions on tribal lands and monuments flow from constitutional and statutory obligations to protect Scheduled Areas and cultural heritage.
Interim Relief by the Court
After extensively reviewing submissions, the Court laid down the following interim arrangement:
- Appointments Frozen: No new appointments shall be made to the Central Waqf Council or State Waqf Boards under the amended provisions. Any such appointments made will be void.
- Protection of Existing Waqfs: No waqf, including waqf by user, shall be de-notified, nor will its status be altered until further orders.
- Registration Requirement Continues: The Court declined to stay the mandatory registration requirement under Section 36. This means waqfs must comply with the statutory obligation to register with the Board.
- Challenge on Merits Reserved: The Court clarified that the validity of contentious provisions (Sections 3C–3E, 9, 14, 23, 36, 43, 44, 108) will be considered in detail at the final hearing.
Court’s Analysis
Presumption of Constitutionality
The Court reiterated the principle from Charanjit Lal Chowdhury v. Union of India and subsequent precedents: laws enjoy a presumption of validity; the burden lies on challengers to establish unconstitutionality beyond doubt.
Interim Relief Caution
Referring to Balsara and Hamdard Dawakhana, the Court stressed that statutory provisions should not be stayed lightly unless there is a prima facie case of legislative incompetence or manifest arbitrariness.
Balancing Act
- On the one hand, the Court acknowledged concerns about the arbitrary exclusion of waqf rights.
- On the other hand, it noted repeated misuse of “waqf by user” and the need to protect government/tribal lands and monuments.
- Therefore, it struck a balance: freezing appointments and preserving waqf status, but not suspending the registration requirement.
Significance
- Partial Relief for Petitioners: Community fears of de-notification of waqfs or takeover by altered Board compositions are temporarily addressed.
- Legitimisation of Registration: By allowing the registration requirement to stay, the Court signalled its acceptance of regulation in secular aspects of waqf administration.
- Final Outcome Awaited: The constitutional validity of the amendments remains undecided; the case will set a major precedent for balancing minority rights, secular regulation, and state interest in land management.
- Broader Constitutional Debate: The judgment revives questions on the scope of Articles 25–26 and whether the State can intrude into religious endowments under the guise of secular regulation.
Conclusion
The Supreme Court’s interim order reflects judicial restraint. While it has protected existing waqfs from being arbitrarily de-notified and frozen controversial appointments, it has allowed the registration requirement to operate, reinforcing the principle of accountability.
The case now proceeds to a full hearing, where the Court will determine the constitutionality of the Waqf (Amendment) Act, 2025 in its entirety. Until then, waqfs across the country must comply with registration norms, even as larger questions of autonomy, equality, and religious freedom remain under judicial scrutiny.
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