This article discusses the recent Supreme Court’s interim order in the petitions challenging the Waqf (Amendment) Act, 2025 and examines the quantum of interim relief granted against relief prayed for and comments on whether such interim relief was indeed adequate to protect the petitioners or not.

I. The Waqf Amendment Act, 2025 in brief

Before further discussion over the interim order passed by the Supreme Court in the petitions challenging the validity of the Waqf Amendment Act, 2025, it is important to understand what the amendment did. An in depth analysis of the provisions and the consequent impact of such provisions can be read here.

First, it attempted to redefine who could create a Waqf by requiring the dedicator (donor of the property) to demonstrate they had been practicing Islam for at least five years, while asserting lawful ownership over the property. Second, the Act prospectively abolished “Waqf by User” (property becoming Waqf merely through consistent religious use as it was the case of many Islamic religious institutions that have been existing since the 1800s or even before). Third, the post-amendment Section 3C introduced a mechanism allowing a designated government officer to unilaterally declare properties identified as Waqf to be “Government property,” thereby removing them from Waqf oversight. Crucially, the law also mandated compulsory registration and applied the Limitation Act, 1963, curtailing traditional protections against adverse possession claims over Waqf land.

The Disquieting Juxtaposition: Waqf vs. Others

The critical issue of discriminatory application looms large, implicating Articles 14 (Equality) and 15 (Non-Discrimination). Petitioners argued that the rigorous state control proposed by the amendments—particularly concerning land management and the mandatory inclusion of non-Muslims in governance—was unfairly imposed upon the Muslim community compared to other religious institutions.

In the landmark Shirur Mutt case (1954), which defined much of the state’s power over religious endowments, the Supreme Court indeed recognized that the right of a religious denomination to administer its property, while regulated by law (Article 26(d)), must fundamentally leave the right of administration to the denomination itself.[1] A law that entirely removes this right and vests it in an outside authority is deemed a violation. Furthermore, the imposition of a compulsory annual contribution under the Madras Act was struck down, not as a fee for services rendered, but as a “tax,” placing it beyond the legislative competence of the state. The rationale was clear: while the state could regulate the secular administration of religious trusts to ensure they are properly managed, it could not levy a tax for the promotion or maintenance of a particular religion.

There exists a stark disparity in the manner charitable institutions of different religions are treated under law, particularly when one examines the proposed Waqf Amendment provisions that impose disproportionately stringent control over the Islamic institution of Waqf. The issue is straightforward. For decades, major Hindu temples have been administered by boards composed entirely of Hindus, and at no point has the government proposed that, since temple administration is a secular activity, persons of other faiths may be appointed to those boards. Consider the endowment legislations in Karnataka[2], Andhra Pradesh[3], and Tamil Nadu[4] — each expressly requires that the commissioners and officers appointed under their respective Acts must profess the Hindu religion. This differential treatment in which Non-Muslim participation is being proposed stands in clear violation of Article 14 of the Constitution, which guarantees equality before the law.

II. Erosion of Legal Safeguards: Property, Custom, and the Collector’s Writ

The most urgent grievances raised before the Supreme Court related to the potential for bureaucratic expropriation of historic Waqf properties, facilitated by three key amendments: the demise of ‘Waqf by User’, the mandatory registration mandate, and the introduction of a new mechanism for determining ‘Government property’.

A. The Sudden Takedown of ‘Waqf by User’ and the Time Bar

For centuries, the concept of Waqf by User acknowledged that consistent religious use of a property could establish it as a Waqf, even without a formal written deed or dedication. The petitioners stressed that many old Waqfs, lacking formalized documents, rely solely on this doctrine for their title and survival. The 2025 Amendment, however, abolished the doctrine prospectively.

The court dealt with the state’s concern saying that this doctrine had been systemically misused to encroach upon vast tracts of government land, citing instances where thousands of acres were claimed as Waqf property merely through user.

However, the sting lay in Section 36 (10) of the Amended Act, which imposed a mandatory registration requirement for all Waqfs within six months of the Act’s commencement. Failure to register within this period effectively barred the Waqf from instituting or commencing any suit or legal proceeding for the enforcement of its rights. While a proviso allows the court to entertain an application if sufficient cause for delay is shown, forcing centuries-old institutions, often poor and disorganized, to scramble for registration within a tight six-month window—after decades of varying legislative requirements and historical neglect by official bodies—constitutes a threat to rights enshrined in Articles 25 and 26 of the Constitution

This provision creates precarious conditions for community rights, essentially rendering unregistered Waqfs remediless. The court’s justification was rather technical: that Mutawallis had decades to register since the 1923 Act. Yet, to adopt this technical justification would be to ignore the ground realities—the lack of formal deeds, illiteracy, and systemic administrative failures by Waqf Boards themselves—and imposing an iron-clad registration bar seems an exercise of power ill-suited to securing justice for historical endowments. The resultant inadequacy is that while the title by use remains theoretically protected for existing properties, the inability to legally defend or enforce rights over that property due to an administrative lapse effectively neuters the title. By now, the six months have passed.

B. The Usurpation of Judicial Authority by the Executive (Sec 3C)

Perhaps the most alarming feature of the amendment was the introduction of Section 3C, establishing a mechanism for determining whether property claimed as Waqf was, in fact, “Government property”. This power was granted to a “designated officer” above the rank of Collector, who, after an inquiry “as per law,” would submit a report to the State Government. If the officer determined the property was government property, they were empowered to order corrections in revenue records and direct the Waqf Board to update its records.

The petitioners vehemently challenged the provisos to Section 3C(2) and the entire mechanism of Sections 3C(3) and 3C(4). The core objection was that entrusting a revenue officer—a functionary of the executive—with the power to determine the title of property, and subsequently mandating changes in revenue records, flagrantly violates the separation of powers, an essential principle enshrined in the Constitution. The determination of property title is a function reserved for judicial or quasi-judicial bodies.

The Supreme Court, while prima facie upholding the initial clauses of Section 3C, intervened by staying the critical executive actions: the provision that the property would cease to be Waqf until the officer’s report (Proviso to Section 3C(2)), and the powers given to the designated officer to order corrections in revenue records (Sections 3C(3) and 3C(4)).[5]

The court correctly asserted that the final determination of title must rest with the specialised Waqf Tribunal, established under Section 83, which is a judicial or quasi-judicial body with appeal rights to the High Court. Furthermore, the court directed that until the Tribunal makes a final adjudication, neither the Waqfs can be dispossessed, nor can the revenue records be altered.[6]

While this stay is crucial—it halts the immediate damage of executive unilateralism—the court’s action necessarily remains an interim restraint on procedure. It does not yet nullify the underlying legislative intent, which remains an aggressive mechanism to “de-recognize” property. The final battle over whether the state can legally employ such an executive process for title investigation, even if followed by judicial remedy, awaits the final hearing.

C. The Re-imposition of Limitation

A historical protection for Waqf property, long deemed dedicated perpetually to God, was enshrined in the un-amended Waqf Act, 1995: Section 107 provided that the Limitation Act, 1963, would not apply to suits for recovery of immovable Waqf property. This immunity protected endowments from being lost through adverse possession, recognizing their unique religious and charitable status, where the owner (Allah) cannot lose title.

The 2025 Amendment, via Section 44, abolished this immunity, mandating that the Limitation Act shall apply to all proceedings related to claims or interests in Waqf property from the date of the Act’s commencement. This change was argued to be a necessary reform to align Waqf law with general property law.

For the rights under Article 25 and 26, this provision is deeply injurious, instantly exposing centuries of undocumented or poorly managed property to adverse possession claims and creating an immense burden on Waqf Boards to initiate lawsuits, many of which may now be time-barred. The petitioners did submit that the combined effect of this amendment and the deletion of the special provision for evacuee property (Section 108) means that potential recovery suits concerning historical properties, including those tied to post-Partition dislocation, could be barred by limitation.

The Supreme Court, in its interim analysis, found no prima facie case for staying this provision, arguing that applying the Limitation Act removes discrimination that existed in the un-amended Act, thereby treating Waqf property equally to other property claims.[7] This judicial stance, however, overlooks the foundational religious and jurisprudential difference: Waqf property is distinct from ordinary private property; it is permanently dedicated to a charitable or pious purpose, and management (by the Mutawalli) is merely custodial, not proprietary. To strip this perpetual immunity without offering a robust, workable transitional mechanism is an existential blow to the community’s ability to defend its patrimony.

III. The State as Arbiter

The amendments also sought to heavily influence the composition and criteria for Waqf creation, bringing the state’s regulatory gaze directly upon matters of religious identity and leadership.

A. Non-Muslim Inclusion and Secular Administration

The amendments to the composition of the Central Waqf Council (Section 9) and State Waqf Boards (Section 14) allowed for the inclusion of non-Muslim members, which petitioners argued was a direct interference in the management of religious affairs (Article 26(b)). The religious character of the Board, they argued, is inseparable from its administrative duties. Conversely, the state maintained that the functions of the Board and Council—dealing with finance, property, encroachment, and audit—are predominantly “secular activities,” which the state is empowered to regulate. The Mutawalli deals with administrative matters, while the Sajjadanashin handles the religious activities.

The court adopted a middle path, reflecting a structural compromise often seen in Indian jurisprudence. It placed limits on the executive’s expansive power, directing that the Central Waqf Council (out of 22 members) shall not consist of more than 4 non-Muslim members, and State Boards (out of 11 members) shall not exceed 3 non-Muslim members. Furthermore, though it declined to stay the provision regarding the appointment of the Chief Executive Officer (CEO), it directed that an effort should be made, “as far as possible,” to appoint a CEO from the Muslim community.[8]

This, while acknowledging the need to preserve majority Muslim representation, essentially validates the state’s claim that Waqf governance is a secular activity amenable to external, cross-community administrative supervision. This position maintains that the “scale of expenses” and “administration of property” are secular affairs that can be regulated by authorities. However, this judicial accommodation reinforces the state’s role as the final arbiter of what constitutes ‘religious’ versus ‘secular’ functions—a role that academics and petitioners alike have long found problematic, not only generally but also from the case perspective.

B. The Five-Year Practice of Islam Requirement

Section 3(r) of the Amended Act stipulated that a Waqf could only be created by a person “showing or demonstrating that he is practising Islam for at least five years” and who is the lawful owner of the property. This provision was challenged as arbitrary and violating Articles 14, 15, and 25.

The state defended the rule, recalling historical legislative concerns dating back to 1923, that Waqf endowments were often used as a “clever device” to defraud creditors or evade law. The new requirement, the state argued, aimed to ensure that only genuine practitioners, and not fraudulent converts seeking a legal shield for property, could dedicate a Waqf.

The Supreme Court recognised the legislative intent but stayed the operation of this condition, not on the grounds of constitutional invalidity, but due to procedural vagueness. The court noted that in the absence of a clearly defined statutory mechanism for determining whether a person has “practised Islam for at least five years,” the provision would necessarily lead to an arbitrary exercise of power. Thus, the condition remains stayed until Government frame rules to create a viable mechanism.[9] This offers temporary procedural relief but fails to address the more substantive critique: why the state feels compelled to legislate criteria for demonstrating genuine religious practice, a function traditionally far outside the boundaries of a secular state.

Moreover, the Supreme Court in its order, while dealing with the critique that defaulters are dedicating their property to the Almighty to defraud creditors, stated that a possibility of people changing their religion to Islam to defraud the creditors cannot be ruled out. This written observation is rather peculiar since it is used to close the doors on what could have been an analysis on whether an exceptional case of a provision allowing some misuse mandates that such provision be void or not. However, the Supreme Court neither goes into that direction nor does it leave a chance open for it to be discussed at a later stage. It simply puts the reason of absence of rules over how to show if someone has been practicing Islam or not as a justification for the stay over this provision.

IV. The Shadow of Exclusion: Tribal Lands

In two areas—properties dedicated by non-Muslims and properties in tribal areas—the Court refused to grant any interim stay, upholding the state’s legislative decisions that carved out exclusions, even though these raised questions of religious liberty and non-discrimination.

Prohibition on Land in Scheduled or Tribal Areas (Section 3E)

Section 3E explicitly states that no land belonging to Scheduled Tribes under the Fifth or Sixth Schedules shall be declared or deemed to be Waqf property, regardless of any other law. This restricts the religious freedom (Articles 25 and 26) of Scheduled Tribe members who practice Islam and wish to dedicate property.

The state and the court’s prima facie view supported the amendment, rationalizing it as a measure to protect the existence of “cultural minorities” whose religious practices are distinct from Islamic religion. The legislative intent was to avoid conflicting provisions and protect the constitutional autonomy granted to tribal lands.

The inadequacy of the interim order here stems from the blanket nature of the prohibition. While protecting tribal culture is a constitutional priority, preventing an individual Muslim member of a Scheduled Tribe from exercising their right to dedicate their own property as Waqf appears to be an overly broad measure. By failing to stay this provision, the court permits a form of religious restriction justified by cultural protection, without fully weighing the individual rights of practicing Muslims within those tribal groups.

V. The Opportunity Cost: Alternatives to Sweeping Invalidation

The state’s underlying intentions, prima facie, for the 2025 amendments was the misuse, waste, and systematic misappropriation of Waqf properties by some incompetent or unscrupulous mutawallis, sometimes even in collusion with government agencies.

However, the question remains whether the state, faced with misuse, chose the most appropriate and constitutionally sensitive remedy.

As early as 1923, the legislature acknowledged the “menace of mismanagement” and responded by proposing compulsory registration, penalties, audits, and official superintendence.

The pre-amendment Waqf Act specifies duties and disqualifications of mutawallis (such as failure to maintain accounts, misuse of funds, or being convicted of encroachment). Removal provisions were extensive. Furthermore, penalizing unauthorized alienation of property was addressed by Section 52A, which prescribed imprisonment and recovery of the property.

The argument that a more appropriate, less constitutionally aggressive path existed rings true: instead of fundamentally challenging the integrity of historical titles through the abolition of Waqf by User and the imposition of executive title determination (Section 3C), the state could have rigorously enforced the existing accountability, anti-encroachment, and penalty provisions against corrupt mutawallis.

By enacting sweeping structural amendments—like applying the Limitation Act to title disputes and delegating title scrutiny to the Executive—the state opted for a sledgehammer approach to solve a problem of governance and corruption, thereby endangering the legitimate, centuries-old endowments that sustain the community. The Supreme Court’s interim relief, while protecting the procedural sanctity of title adjudication (by striking down the executionary steps of Sec 3C), ultimately permits these structural, title-threatening changes (like the prospective abolition of Waqf by User and the application of the Limitation Act) to stand pending final adjudication. This approach risks resulting in a protective regime whose effect is inadequate when weighed against the magnitude of the rights, religious history, and communal identity hanging in the balance.

(The author is part of the legal research team of the organisation)

[1] The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt 1954 SCR 1005

[2] Section 7, The Hindu Religious Institutions and Charitable Endowments Act, 1997

[3] Section 3, Andhra Pradesh Charitable and Hindu Religious Institutions And Endowments Act, 1987

[4] Section 10, The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959

[5] Para 209, IN RE: The Waqf Amendment Act, 2025 (1) 2025 INSC 1116 (Waqf Interim Order)

[6] Para 209, Waqf Interim Order.

[7] Para 201, Waqf Interim Order

[8] Para 189, Waqf Interim Order.

[9] Para 140, Waqf Interim Order

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While refusing to stay the Act in its entirety, the Court partially suspended certain provisions, emphasising that such intervention was necessary to prevent arbitrariness and protect all parties until the matter is decided finally.

As per reports in LiveLaw, CJI Gavai began the pronouncement by observing: “Only in the rarest of rare cases a legislation can be stayed by the Court. Though the entire Amendment Act is under challenge, the challenge is essentially to certain specific provisions. We are, therefore, of the view that no case is made to stay the provisions of the entire statute.”

1. Five-year practice of Islam condition

Provision challenged: Section 3(1)(r) required that a person must have been a practitioner of Islam for at least five years before being eligible to create a Waqf.

Court’s observations:

• The condition is not per se arbitrary. The legislature’s concern was to prevent misuse, such as people converting to Islam solely to create Waqfs to shield properties from creditors:

“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.” (Para 136)

• However, in the absence of any statutory mechanism to determine whether a person has indeed practised Islam for five years, the provision would lead to an arbitrary exercise of power.

Court’s direction:

• The provision is stayed until State Governments frame Rules to create such a mechanism.
• The stay is temporary and conditional on legislative follow-up.

2. Government power to derecognise Waqf land pending dispute

Provisions challenged:

• Proviso to Section 3C(2): Stated that if a property is disputed as encroached government land, it would not be treated as Waqf until a designated government officer submits his report.
• Section 3C(3): Empowered the officer, if determining it was government land, to order corrections in revenue records.
• Section 3C(4): Required the State Government to direct the Waqf Board to make corresponding changes.

Court’s observations:

• Entrusting the Collector or designated officer with the power to decide property rights violates the separation of powers:

“Though we have prima facie upheld the provisions of Section 3C(1) and 3C(2) of the Amended Waqf Act, we find that the question with regard to determination of title of a property being entrusted to a revenue officer would not be in tune with the principle of separation of powers enshrined in our Constitution. The question of determination of the title of a property will have to, in our considered opinion, be resolved by a judicial or quasi-judicial authority.” (Para 161)

• The interim suspension of Waqf status prior to judicial determination is prima facie arbitrary:

“If a property is already identified as a waqf property or is declared as waqf property, then without determination of the question as to whether such a property is a Government property or not and treating the said property not as a waqf property, in our prima facie view, is arbitrary.” (Para 158)

The final determination of title must rest with a judicial or quasi-judicial body, namely the Waqf Tribunal under Section 83, with appeals to the High Court.

“It is 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.” (Para 209 iii)

Court’s directions:

• The proviso to Section 3C(2), Section 3C(3), and Section 3C(4) are stayed.
• Until title disputes are decided:
  • Waqfs cannot be dispossessed of disputed lands.
  • Revenue records and Waqf Board records remain unaffected.
  • Mutawallis cannot create third-party rights over such properties until final adjudication. 

3. Non-Muslims in Central Waqf Council and State Waqf Boards

Provisions challenged: Amended provisions allowed inclusion of a higher number of non-Muslims in Waqf bodies.

Court’s observations and directions:

• In the Central Waqf Council (22 members) – maximum of 4 non-Muslims.
• In State Waqf Boards (11 members) – maximum of 3 non-Muslims.
• This ensures that Muslim representation remains predominant in bodies managing Islamic religious endowments.

“It is directed that 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 is directed that it shall not consist of more than 3 non-Muslim members out of 11.” (Para 209 iv)

4. Appointment of CEO of Waqf Boards

Provision: Section 23 permitted a non-Muslim CEO, who acts as ex officio Secretary to the Board.

Court’s observation and direction:

• Did not stay the provision.
• Issued a directive:

“Though we are not inclined to stay Section 23, we direct that as far as possible, efforts should be made to appoint the Chief Executive Officer of the Board, who is the ex-officio Secretary, from amongst the Muslim community.” (Para 209 v)

5. Registration of Waqfs

Provision challenged: Section 36 required:

• Mandatory registration of all Waqfs.
• Prohibition of creating new Waqfs without a deed.
• Six months’ compliance window.

Court’s observations:

• This is not novel — registration has been mandated under every Waqf law since 1923, including the 1954 and 1995 Acts.
• Even if a deed is missing, registration is possible by supplying particulars.
• Six months’ time has been provided, with courts empowered to condone delay.

Court’s direction:

• No stay.
• Held that this requirement is consistent with legislative history and is neither arbitrary nor discriminatory.

“We are, therefore, of the view 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.” (Para 149)

“sub-section (10) of Section 36 of the Amended Waqf Act itself provides a period of 6 months from the commencement of the impugned Act. As such, we are of the considered view 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.” (Para 192)

6. Abolition of “Waqf by User”

Provision challenged: The 2025 amendment abolished the doctrine of Waqf by user, which recognised a property as Waqf through consistent religious use even without a deed.

Petitioners’ argument: Many age-old Waqfs had no deeds, and their survival depended on the doctrine.

Court’s observations:

• Since registration has been required since 1923, Waqfs had 102 years to register:

“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.” (Para 147)

• The abolition is prospective, aimed at preventing misuse:

“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.” (Para 150)

Court’s direction: No stay. The abolition stands.

7. Other provisions left undisturbed

The Court refused interim interference with:

• Prohibition on Waqfs in Scheduled Areas and protected monuments.
• Restriction that only Muslims can create Waqfs.
• Application of the Limitation Act to Waqf disputes.
• Cap on women members in Waqf Councils and Boards.
• Amendments concerning waqf-alal-aulad, appeals, renaming of the Act, and structural changes.

Operative portion of the order

CJI Gavai concluded: “The prayer for stay of the impugned Act is, therefore, rejected. However, while doing so, in order to protect the interest of all the parties and balance the equities during pendency of this batch of matters, we issue the following directions…”

• Stayed:
  • Five-year Islam practice condition (till Rules framed).
  • Proviso to Section 3C(2), Section 3C(3), Section 3C(4).
• Directed:
  • Non-Muslim members capped at 4 (Central Council) and 3 (State Boards).
  • Preference for Muslim CEOs.
• Not stayed:
  • Registration mandate.
  • Abolition of Waqf by user.
  • All other provisions.

Summary of the interim order of the Supreme Court is as follows:

The complete judgment may be read here.

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